Termination Fee. (i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509. (ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee. (iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee. (iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
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Termination Fee. (a) In the event that: (i) If this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(i) or Section 7.01(b)(iii); provided that (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) a Takeover Proposal shall have been satisfied publicly made, proposed or waived, and (C) (x) communicated by a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed third party after the date of this Agreement and not withdrawn prior to, in the case of a termination pursuant to Section 7.01(b)(iii), the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) earlier of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above completion of the Company has actual knowledgeShareholders’ Meeting (including any adjournment or postponement thereof) after and the time this Agreement is terminated or in the case of a termination under Section 7.01(b)(i), the time this Agreement is terminated and (B) within 12 months of the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationis terminated, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve with respect to a Takeover Proposal (12whether or not such Takeover Proposal was the same Takeover Proposal referred to in clause (A) months of and such termination to effect any Acquisition ProposalTakeover Proposal is subsequently consummated (even if after the 12 month period)); provided that, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (B) and (C) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
; or (ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e7.01(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), thenthe Company shall pay, or cause to be paid, the Company Termination Fee to Parent or its designee by wire transfer of same-day funds (x) in the case of Section 7.03(a)(ii)(A), within three (3) two business days after such termination, (y) in the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to case of Section 9.1(h7.03(a)(ii)(B), then, prior to or concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iiiz) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful BreachSection 7.03(a)(i), notwithstanding anything else to within two business days after the contrary in this Agreement, payment consummation of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Takeover Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay or cause to be paid the Company Termination Fee on more than one occasion. As used herein, “Company Termination Fee” shall mean a cash amount equal to $129,000,000.
(b) In the event that this Agreement is terminated and the Company Termination Fee is paid to Parent in circumstances for which such fee is payable pursuant to Section 7.03(a), payment of the Company Termination Fee shall be the sole and exclusive monetary damages remedy of Parent, Merger Sub and their respective Subsidiaries and any of their respective former, current or future officers, directors, partners, shareholders, managers, members or Affiliates against the Company and its Subsidiaries and any of their respective former, current or future officers, directors, partners, shareholders, managers, members or Affiliates (collectively, “Company Related Parties”) for any loss suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise (so long as, in the event that this Agreement was terminated by the Company, such termination was in accordance with the applicable provisions of this Agreement), and, subject as aforesaid, upon payment of such amount none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions. 51 ARTICLE VIII Miscellaneous SECTION 8.01.
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Sources: Merger Agreement
Termination Fee. (a) The Company shall pay to Parent an amount in cash equal to $2,000,000 (the “Termination Fee”) if:
(i) If this Agreement is terminated by Parent pursuant to Section 8.1(f) or by the Company pursuant to Section 8.1(g); or
(ii) this Agreement is terminated by either the Company or the Parent pursuant to Section 8.1(e) and (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any an Acquisition Proposal is consummated within twelve pending, and (12B) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination prior to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days is twelve months after such termination, the Company shall pay or cause to be paid to Parent the Termination Feeany Company Subsidiary enters into any Acquisition Agreement or any Acquisition Proposal is consummated.
(iiib) If Any fee due under Section 8.2(a) shall be paid by the Company terminates this Agreement pursuant to (or shall be paid on the Company’s behalf) by wire transfer of same day funds:
(i) in the case of Section 9.1(h8.2(a)(i), then, concurrently with such termination termination; and
(ii) in the case of this Agreement by Section 8.2(a)(ii), on the earlier of the date the Company as enters into such Acquisition Agreement or consummates such Acquisition Proposal.
(c) The Company acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not have entered into this Agreement. Accordingly, if the Company fails promptly to pay the amounts due pursuant to this Section 8.2, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amounts set forth in this Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv))8.2, the Company shall pay or cause to be paid to Parent its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit and any appeal relating thereto, together with interest on the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described amounts set forth in this Section 9.2(b) 8.2 at the Company shall have no further liability or obligations prime rate of any kind Citibank, N.A. in connection with this Agreement or effect on the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company date such payment was required to be obligated to pay the Termination Fee on more than one occasionmade.
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Termination Fee. (a) In the event that:
(i) If (A) Parent a bona fide proposal or offer with respect to a Competing Transaction shall have been made, proposed or communicated (and not withdrawn), after the Company terminates date hereof and prior to the Shareholders Meeting (or prior to the termination of this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(gif there has been no Shareholders Meeting), (B) following the occurrence of an event described in the case of termination preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 9.1(d8.02(a) or Section 8.02(c), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months after the termination of such termination or this Agreement, the Company or any of its Subsidiaries consummates, or enters into a definitive agreement within twelve in connection with, any Competing Transaction by a Third Party (12in each case whether or not the Competing Transaction was the same Competing Transaction referred to in clause (A)) months of such termination to effect any Acquisition Proposal(provided, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 9.2(b)(i8.06(a), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or in the definition of “85%Competing Transaction” therein shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(c) or Section 8.03(d), then the Company shall pay, or cause to be paid, to Parent or its designees an amount in cash equal to US$1.5 million (the “Company Termination Fee”) by wire transfer of same day funds as promptly as possible (but in any event (x) within five (5) Business Days after such termination in the case of a termination referred to in clause (ii) above, (y) prior to or concurrently with the entry by the Company into the definitive agreement in connection with a Competing Transaction in the case of a termination referred to in clause (i) above, or (z) prior to or concurrently with the termination of this Agreement in case of a termination pursuant to clause (iii) above); it being agreed that in no event shall the Company be required to pay the Company Termination Fee more than once.
(b) Parent will pay, or cause to be paid, to the Company an amount in cash equal to US$3 million (the “Parent Termination Fee”) if this Agreement is terminated by the Company pursuant to Section 8.03(a) or Section 8.03(b), such payment to be made as promptly as possible (but in any event within two (2) Business Days after such termination by wire transfer of same day funds); it being agreed that in no event shall Parent be required to pay the Parent Termination Fee more than once.
(c) Except as otherwise specified in Section 6.07(e) and Section 8.06(d), all expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such expenses, whether or not the Merger or any other Transaction is consummated.
(d) In the event that the Company fails to pay the Company Termination Fee, or Parent fails to pay the Parent Termination Fee, when due and in accordance with the requirements of this Agreement, the Company or Parent, as the case may be, shall reimburse the other party for reasonable costs and expenses actually incurred or accrued by the other party (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.06, together with interest on such unpaid Company Termination Fee or Parent Termination Fee, as the case may be, commencing on the date that the Company Termination Fee or Parent Termination Fee, as the case may be, became due, at the prime rate as published in The Wall Street Journal Table of Money Rates on such date plus 1.50% or a lesser rate that is the maximum permitted by applicable Law. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder.
(e) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 8.06 are an integral part of the Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination Fee or Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 8.06(a) or Section 8.06(b) are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and clause (iii)(xiii) without the agreements contained in this Section 8.06, the parties hereto would not have entered into this Agreement.
(i) Subject to Section 9.08, in the event that the Company has the right to terminate this Agreement and receive the Parent Termination Fee pursuant to Section 8.06(b) and costs and expenses under Section 6.07(e) and Section 8.06(d), the receipt of the Parent Termination Fee under the Limited Guarantee (subject to its terms, conditions and limitations) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of such any Group Company and all members of the Company Group against (A) Parent, Merger Sub, Holdco, the Guarantor and the Rollover Shareholders, (B) the former, current and future direct or indirect holders of any equity, general or limited partnership or limited partnership or liability company interest, controlling persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of Parent, Merger Sub, Holdco, any Guarantor or Rollover Shareholder, (C) any Debt Financing Provider or any agent or representative of or to Parent, Merger Sub, Holdco or any Guarantor or Rollover Shareholder, or (D) any former, current or future direct or indirect holders any equity, general or limited partnership or limited liability company interest, controlling persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of any of the foregoing (clauses (A) through (D) of this (f), collectively, the “Acquisition Proposal” definition Parent Group”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement or failure to perform hereunder or other failure of the Merger or the other Transactions to be consummated. For the avoidance of doubt, neither Parent nor any other member of the Parent Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including any Transaction Document) other than the payment of the Parent Termination Fee pursuant to Section 8.06(b) and the costs and expenses pursuant to Section 6.07(e), Section 8.06(d), and in no event shall any Group Company, the direct or indirect shareholders of the Company or any other Group Company, or any of their respective Affiliates, or directors, officers, employees, members, managers, partners, representatives, advisors or agents of the foregoing (collectively, the “Company Group”), seek, or permit to be deemed sought, on behalf of any member of the Company Group, any monetary damages from any member of the Parent Group in connection with this Agreement or any of the Transactions (including any Transaction Document), other than (without duplication) from Parent or Merger Sub to refer only the extent provided in Section 6.07(e), Section 8.06(b) and Section 8.06(d), or the Guarantor to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509the extent provided in the Limited Guarantee.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding Notwithstanding anything herein to the contrary, payment the Company, on behalf of itself, and its Subsidiaries, and each of its controlled Affiliates and each of the other parties to this Agreement on behalf of itself, its Subsidiaries, and each of its controlled Affiliates agrees that (A) no Debt Financing Provider shall not be required prior have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or losses arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of or by reason of this Agreement or its negotiation, execution, performance, breach or termination (provided that nothing in this Section 8.06(f)(ii) shall limit the liability or obligations of any Debt Financing Provider under the Debt Commitment Letter, Alternative Financing Documents (if applicable) or any definitive agreement with respect to the designation Debt Financing or Alternative Financing (if applicable) to which such Debt Financing Provider is a party owed to the other parties thereto (the “Debt Financing Parties”)); and (B) only the Debt Financing Parties shall be permitted to bring any claim against a Debt Financing Provider for failing to satisfy any obligation of such account Debt Financing Provider to fund or provide the Debt Financing or Alternative Financing (if applicable) pursuant to the terms of the Debt Commitment Letter, Alternative Financing Documents (if applicable) or any definitive agreement with respect to the Debt Financing or Alternative Financing (if applicable) to which such Debt Financing Provider is a party or otherwise in relation to the Debt Commitment Letter, Alternative Financing Documents (if applicable) or any definitive agreement with respect to the Debt Financing or Alternative Financing (if applicable) to which such Debt Financing Provider is a party.
(iii) Subject to Section 9.08, Parent’s right to terminate this Agreement and receive payment from the Company of the Company Termination Fee pursuant to Section 8.06(a) and expenses under Section 8.06(d) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any member of the Parent Group against any member of the Company Group for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement or failure to perform hereunder or other failure of the Merger to be consummated. Neither the Company nor any other member of the Company Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions other than the payment by the Company of the Company Termination Fee pursuant to Section 8.06(a) and the costs and expenses under Section 8.06(d), and in no event shall any of Parent, Merger Sub or any other member of the Parent Group seek, or permit to be sought, on behalf of any member of the Parent Group, any monetary damages from any member of the Company Group in connection with this Agreement or any of the Transactions, other than (without duplication) from the Company to the extent provided in Section 8.06(a) and Section 8.06(d). Except While the Parent Group may pursue both (i) a grant of specific performance under Section 9.07 and (ii) seek payment of the Company Termination Fee pursuant to Section 8.06(a) and reimbursement and interest pursuant to Section 8.06(d), under no circumstances shall any Parent Party be permitted or entitled to receive both a grant of specific performance that results in the case consummation of common law fraud the Transactions and payment of the Company Termination Fee and reimbursement and interest in connection with the termination of this Agreement.
(not including in any event any constructive fraud or any fraud that is not intentional or deliberateiv) or a Willful Breach, notwithstanding Notwithstanding anything else to the contrary in this Agreement, payment the Financing Documents, the Support Agreement and the Limited Guarantee or any other document contemplated thereby or any document or instrument delivered in connection hereunder or thereunder (collectively, the “Transaction Documents”), but subject to Section 9.08, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, of the Termination Fee shall constitute liquidated damagesParent Group collectively (including monetary damages for fraud or breach, and from and after such termination as described whether willful, intentional, unintentional or otherwise, or monetary damages in lieu of specific performance) (A) under this Section 9.2(bAgreement or any other Transaction Document, (B) in connection with the Company shall have no further liability failure of the Merger or obligations the other transactions contemplated hereunder or under the Transaction Documents (including the Financing) to be consummated or (C) in respect of any kind representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, shall not exceed under any circumstances an amount equal to the termination contemplated hereby other than as provided under this Section 9.2(b). For sum of (i) the avoidance of doubtParent Termination Fee, in no event shall if any, due and owing to the Company be obligated pursuant to pay Section 8.06(b) and (ii) the Termination Fee on more than one occasionamounts, if any, due and owing under Section 8.06(d) and Section 6.07(e).
Appears in 1 contract
Termination Fee. (i) If this Agreement is terminated by the Parent pursuant to Section 9.1(g) or by the Company pursuant to Section 9.1(h), then the Company shall immediately pay to the Parent a termination fee equal to (A) Parent $30,000,000 in cash if such termination fee becomes payable in a circumstance in which the event giving rise to the right of termination is based on the submission of an Acquisition Proposal by an Excluded Party prior to the No-Shop Period Start Date or the Company terminates (B) $40,000,000 in cash in all other circumstances, in each case payable by wire transfer in same day funds; or
(ii) if (A) this Agreement is terminated pursuant to Section 9.1(c), 9.1(d) or Section 9.1(e) at a time when an Acquisition Proposal has been made (and, in the case of a termination pursuant to (i) Section 9.1(d) or Section 9.1(g9.1(e), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn at least ten (10) business days prior to the date of such termination the Agreement became terminable or (yii) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such eventSection 9.1(c), with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company at least thirty (30) days prior to the date of such terminationthe Agreement became terminable), and (DB) any Acquisition Proposal is consummated within twelve (12) months of such termination in the case of an Acquisition Proposal made by any party that executed a confidentiality agreement or received non-public information regarding the Company in connection with consideration of an Acquisition Proposal during the term of this Agreement, or within three (3) months of such termination in the case of an Acquisition Proposal from any other party, (x) the Company enters into a definitive agreement within twelve regarding an Acquisition Proposal, (12y) months becomes a subsidiary of the Person making such termination Acquisition Proposal or (z) consummates a transaction relating to effect any such Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall immediately pay to the Parent a termination fee of equal to (1) $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with 30,000,000 if such termination fee becomes payable in a circumstance in which the event giving rise thereto is based on the submission of this Agreement an Acquisition Proposal by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required Excluded Party prior to the designation of such account by Parent). Except No-Shop Period Start Date or (2) $40,000,000 in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby all other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasioncircumstances.
Appears in 1 contract
Termination Fee. (ia) If In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) (and at the time of such termination a bona fide Acquisition Proposal vote to obtain the Company Stockholder Approval has not been held) or Section 7.1(b)(iii), (other than y) prior to such termination, any Acquisition Proposal described Person or “group” (as defined in clause (iii)(xSection 13(d) of the definition Exchange Act), other than Parent and its Subsidiaries, Affiliates and Representatives (on behalf of such term) Parent), shall have been made publicly announced (and shall not have withdrawn) an intention (whether or not conditional or withdrawn) to make a Takeover Proposal or such Takeover Proposal has otherwise become publicly known and (z) the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) enters into a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, definitive agreement with respect to which to, or consummates, a transaction contemplated by any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Takeover Proposal is consummated within twelve (12) months of such termination the date this Agreement is terminated, (B) this Agreement is terminated by Parent pursuant to
Section 7.1 (c)(iii) or (C) this Agreement is terminated by the Company enters into a definitive agreement within twelve (12) months of such termination pursuant to effect any Acquisition ProposalSection 7.1(d)(ii), then on the date in any such event under clause (A), (B) or (C) of such consummation or such entry into a definitive agreementthis Section 7.3(a), the Company shall pay to Parent a termination fee of $15,496,000 15,000,000 in cash (the “Company Termination Fee”). Solely for purposes Any payment required to be made pursuant to clause (A) of this Section 9.2(b)(i)7.3(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the term “Acquisition consummation of, any transaction contemplated by a Takeover Proposal” ; any payment required to be made pursuant to clause (B) of this Section 7.3(a) shall have the meaning assigned be made to Parent promptly following (and in any event not later than two business days after) termination of this Agreement by Parent pursuant to such term in Annex I, except that all references section; and any payment required to “15%” or “85%” therein be made pursuant to clause (C) of this Section 7.3(a) shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid made to Parent prior to or simultaneously with (and as a condition to the Termination Fee.
(iiieffectiveness of) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv7.1(d)(ii)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) . All such payments shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent.
(b) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(i) or 7.1(d)(iii),or by Parent (and, notwithstanding anything herein or the Company pursuant to Section 7.1(b)(i) at a time when the Agreement could have been terminated by the Company pursuant to Section 7.1(d)(iii) then Parent shall pay to the contraryCompany a termination fee of $20,000,000 in cash (the “Parent Termination Fee”), payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud it being understood that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company Parent to be obligated required to pay the Parent Termination Fee on more than one (1) occasion. If the Parent Termination Fee becomes payable pursuant to this Section 7.3(b), it shall be paid no later than three (3) Business Days after the termination of this Agreement pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii).
(c) In the event that the Company shall fail to pay the Termination Fee when due, or Parent shall fail to pay the Parent Termination Fee when due, as the case may be, such payment amount shall accrue interest for the period commencing on the date such payment amount became past due, at a rate equal to the rate of interest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank’s Prime Lending Rate. In addition, if either party shall fail to pay such payment amount when due, such party shall also pay to such other party all of such other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such payment amount. Each of the Company and Parent acknowledges that the payment amounts and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, neither the Company nor Parent would enter into this Agreement.
(d) If this agreement is terminated by the Company pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii), the Company’s right to receive payment of the Parent Termination Fee from Parent in respect thereof shall be the sole and exclusive remedy of the Company and its Affiliates against Parent or Merger Sub or any of their respective former, current or future stockholders, directors, officers, employees, representatives or Affiliates (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise (“Company Damages”) and upon payment of such amount none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions (except that Parent shall also be obligated with respect to Section 7.3(c)).
Appears in 1 contract
Termination Fee. (a) If: (i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g7.1(f), (Bii) in the case of termination this Agreement is terminated by Parent pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 7.1(g) or (other than Section 8.3(c)) shall have been satisfied or waived, and (Ciii) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledgeA) after the date of this Agreement Agreement, a Company Takeover Proposal (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in the definition of “Company Takeover Proposal”) (a “Qualifying Transaction”) shall have been publicly made and not withdrawn withdrawn, (B) thereafter this Agreement is terminated by Parent or expressly rejected by the Company pursuant to Section 7.1(b) (if the Company is in material breach of its obligations pursuant to Section 5.7), Section 7.1(e) or Section 7.1(h) and (C) at any time on or prior to the date twelve-month anniversary of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company or any of its Subsidiaries enters into a definitive agreement within twelve (12) months with respect to any Qualifying Transaction or completes a Qualifying Transaction; then in any of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 event in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) above, the Company shall be paid by wire transfer of pay to Parent the Company Termination Fee in immediately available funds to an account designated in writing by Parent (andfunds, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud clause (not including i), in accordance with Section 5.3(f), in the case of clause (ii), within two Business Days after such termination, and in the case of clause (iii), upon the earlier of the announcement of its entering into a definitive agreement related to, consummation of any event any constructive fraud or any fraud that is not intentional or deliberateQualifying Transaction.
(b) or a Willful Breach, notwithstanding Notwithstanding anything else to the contrary in this Agreement, payment of if the Company Termination Fee shall constitute liquidated damagesbecome due and payable in accordance with this Section 7.3, and from and after such termination as described and payment of the Company Termination Fee in full pursuant to and in accordance with this Section 9.2(b) 7.3, the Company shall have no further liability or obligations Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than for any Liability arising from a Willful Breach of this Agreement as provided under set forth in Section 7.2 and this Section 9.2(b)7.3. For Each of the avoidance parties hereto acknowledges that the Company Termination Fee is not intended to be a penalty but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Company Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of doubtthe consummation of the transactions contemplated hereby, in which amount would otherwise be impossible to calculate with precision. In no event shall Parent be entitled to payment of the Company be obligated to pay the Termination Fee on more than one occasion.
(c) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the Company, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to pay in a timely manner the Company Termination Fee, then the Company shall pay to Parent interest on such amount from and including the date payment of such amount was due to but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made plus 2% per annum.
Appears in 1 contract
Sources: Merger Agreement (Valspar Corp)
Termination Fee. (a) If this Agreement is terminated:
(i) If (A) Parent or by the Company terminates this Agreement Company, pursuant to Section 9.1(c7.1(h), ;
(ii) by IAC pursuant to Section 9.1(d7.1(g) in the event of an Adverse Recommendation Change; or
(iii) (x) by the Company or IAC pursuant to Section 7.1(b) or Section 9.1(g)7.1(d) of this Agreement, or by IAC pursuant to Section 7.1(f) based on the condition set forth in Section 6.3(b) of this Agreement, (By) a Company Takeover Proposal shall have been made or communicated to the Company Board of Directors or shall have been publicly announced or shall have become publicly known and (1) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)7.1(d) shall not have been satisfied or waived, and publicly withdrawn by a date that is at least five (C5) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made Business Days prior to the Company Stockholders’ Meeting and (2) in the case of termination pursuant to Section 7.1(b) or publicly disclosed after the date of this Agreement and Section 7.1(f), shall not have been withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (Dz) any Acquisition Proposal is consummated within twelve nine (129) months of such the termination or of this Agreement, the Company or any of its Subsidiaries enters into a definitive agreement with a third party with respect to or consummates a transaction that is a Company Takeover Proposal with a third party (or a third party otherwise consummates a transaction that is a Company Takeover Proposal);
(iv) then the Company shall pay to IAC $20,000,000 (the “Company Termination Fee”) by wire transfer (to an account designated by IAC) in immediately available funds (A) in the case of clause (i), prior to or concurrently with such termination, (B) in the case of clause (ii), within twelve two (122) months Business Days of such termination to effect any Acquisition Proposaltermination, then on or (C) in the date case of such consummation or such clause (iii), upon the earlier of the entry into a definitive agreement, agreement with respect to such Company Takeover Proposal and the consummation of such transaction.
(b) The payment of the Company Termination Fee shall be compensation and liquidated damages for the loss suffered by IAC as a result of the failure of the transactions contemplated by this Agreement and the Ancillary Agreements to be consummated and to avoid the difficulty of determining damages under the circumstances and the Company shall pay a fee not have any other liability to IAC after the payment of $15,496,000 in cash (the “Company Termination Fee”), except in the case of fraud or a Willful and Material Breach. Each of the parties hereto acknowledges that the Company Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate IAC in the circumstances in which such Company Termination Fee is due and payable and which do not involve fraud or Willful 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 the consummation of the transactions contemplated hereby and by the Ancillary Agreements, which amount would otherwise be impossible to calculate with precision. In no event shall IAC be entitled to more than one payment of the Company Termination Fee in connection with a termination of this Agreement pursuant to which the Company Termination Fee is payable. Solely for purposes of this Section 9.2(b)(i)7.3, the term “Acquisition Company Takeover Proposal” shall have the meaning assigned to such term ascribed thereto in Annex ISection 8.15(b)(xiii), except that all references to “15%” or “85%” therein % shall be deemed changed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(iic) If Parent terminates Each of the Company, IAC, NewCo and Merger Sub acknowledges that the agreements contained in this Agreement Section 7.3 are an integral part of the transactions contemplated hereby and by the Ancillary Agreements, and that, without these agreements, the Company, IAC, NewCo and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to pay in a timely manner any amount due pursuant to this Section 9.1(e)7.3 and, thenin order to obtain such payment, within three (3) business days after IAC commences a suit that results in an award against the Company for such terminationamount, then the Company shall reimburse IAC for all costs and expenses (including reasonable fees of counsel) incurred in such suit and pay or cause interest on such amount from and including the date payment of such amount was due to be paid to Parent but excluding the Termination Fee.
(iii) If date of actual payment at the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as prime rate set forth in Section 9.1(h) (or, if later, promptly following The Wall Street Journal in effect on the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause date such payment was required to be paid to Parent the Termination Feemade.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (i) If In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d8.1(b)(i) or Section 9.1(g), (B8.1(b)(iii) in the case of termination or Parent terminates this Agreement pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)8.1(c)(iii) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledgeB) after the date of this Agreement and prior to such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to the Company Board or the Company's stockholders and not publicly and unconditionally withdrawn or expressly rejected by the Company prior to the date abandoned, then if, within nine (9) months of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination providing for, or recommends to effect any Acquisition Proposalits stockholders, a Competing Proposal or a Competing Proposal is consummated, then on within one (1) business day after the date occurrence of such consummation or such entry into a definitive agreement, the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $15,496,000 69,750,000 in cash (the “"Termination Fee”"). Solely for purposes of this Section 9.2(b)(i8.2(b)(i), the term “Acquisition "Competing Proposal” " shall have the meaning assigned to such term in Annex ISection 5.3(j)(i), except that all references to “"15%” or “85%” " therein shall be deemed to be "50%" and all references to “50"85%”, and clause (iii)(x) of such “Acquisition Proposal” definition " therein shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509be "50%".
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h8.1(d)(i), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv))termination, the Company shall pay or cause to be paid to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii) (or this Agreement is terminated by Parent or 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 Parent was entitled to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii)), within one (1) business day after such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) Any In the event any amount is payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) ), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein if any amount becomes payable pursuant to the contraryany such clause, payment such amount shall not be required prior to the designation of or become due unless and until Parent has provided such wire transfer instructions for such designated account by Parentin writing). Except in the case of common law fraud .
(not including in any event any constructive fraud or any fraud that is not intentional or deliberatev) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Kythera Biopharmaceuticals Inc)
Termination Fee. (a) Notwithstanding any provision in this Agreement to the contrary, in the event that (i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g6.1(c), (Bii) in the case of termination this Agreement is terminated by Parent pursuant to Section 9.1(d6.1(d)(i), all (iii) this Agreement is terminated by Parent pursuant to Section 6.1(d)(ii) and within one year of termination of this Agreement, the conditions set forth in Section 8.1 and Section 8.3 Company consummates an Acquisition Proposal, or (other than Section 8.3(c)iv) shall have been satisfied or waived, and (C) (x) a bona fide an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made known to the Company or shall have been made directly to its stockholders generally or any person shall have publicly disclosed announced an intention (whether or not conditional) to make an Acquisition Proposal and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of thereafter this Agreement is terminated pursuant to Section 6.1(b)(i) or Section 6.1(b)(iii) and such Acquisition Proposal (whether or not withdrawn or expressly rejected by the Company prior to the date modified after it was first made) is consummated within 1 year of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay to Parent, (x) in the case of clauses (i) or (ii) of this Section 6.3(a), upon the date of termination, or (y) in the case of clauses (iii) or (iv) of this Section 6.3(a), upon such consummation, a fee of $15,496,000 in cash 22,000,000 (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent funds.
(and, notwithstanding b) Notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, Parent’s right to receive payment of the Termination Fee pursuant to Section 6.3(a) shall constitute liquidated damagesbe the exclusive remedy of Parent and Merger Sub against the Company, and from and after such its Subsidiaries or any of their respective Representatives for any loss suffered as a result of a termination of this Agreement as described provided for in this Section 9.2(b) 6.3, and upon payment of the Company Termination Fee in accordance with this Section 6.3 neither the Company, its Subsidiaries, nor any of their respective Representatives, as the case may be, shall have no any further liability or obligations obligation relating to or arising out of any kind in connection with this Agreement or the termination transactions contemplated hereby other than by this Agreement (except as provided under this in Section 9.2(b6.2). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Russell Corp)
Termination Fee. (a) If this Agreement is terminated (i) If by Checkpoint pursuant to any clause of Section 8.1(c) hereof (Aother than by reason of clause (iv) Parent or the Company terminates thereof) and if Ultrak is not entitled to terminate this Agreement by reason of Section 8.1(d) hereof (other than by reason of clause (iv) thereof), (ii) by Ultrak pursuant to Section 9.1(c)8.1(b)(iv) and, Section 9.1(dif within six (6) months thereafter, Ultrak receives, or Section 9.1(g)there is a public announcement of, a friendly or unsolicited tender offer, or Ultrak executes a formal letter of intent evidencing an Acquisition Proposal or enters into a definitive agreement respecting a transaction incident to an Acquisition Proposal which (Bwith respect to each of the foregoing) in the case of termination subsequently closes, or (iii) pursuant to Section 9.1(d)8.1(e) by Ultrak, all and at the time of such termination under this clause (iii) or prior to the conditions meeting of Ultrak's shareholders as set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) the Proxy Statement there shall have been satisfied or waived, and (C) (x) a bona fide an Acquisition Proposal involving Ultrak (other than any Acquisition Proposal described in clause (iii)(x) of the definition of whether or not such term) proposal shall have been made to the Company rejected or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months time of such termination or the Company meeting), then in either case, Ultrak shall pay to Checkpoint a termination fee of $5,000,000 payable in good funds in Philadelphia, PA on the next business day following notice of termination with respect to clauses (i) and (iii) and, at the time of closing of the Acquisition Proposal, in the case of clause (ii).
(b) If this Agreement is terminated (i) by Ultrak pursuant to any clause of Section 8.1(d) hereof (other than by reason of clause (iv) thereof) and if Checkpoint is not entitled to terminate this Agreement by reason of Section 8.1(c) hereof (other than by reason of clause (iv) thereof), (ii) by Checkpoint pursuant to Section 8.1(b)(iv) and, if within six (6) months thereafter, Checkpoint receives, or there is a public announcement of, a friendly or unsolicited tender offer, or Checkpoint executes a formal letter of intent evidencing an Acquisition Proposal or enters into a definitive agreement within twelve respecting a transaction incident to an Acquisition Proposal which (12with respect to each of the foregoing) months subsequently closes, or (iii) pursuant to Section 8.1(e) by Checkpoint, and at the time of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of under this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If or prior to the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination meeting of this Agreement by the Company Checkpoint's shareholders as set forth in Section 9.1(h) the Proxy Statement there shall have been an Acquisition Proposal involving Checkpoint (or, if later, promptly following whether or not such proposal shall have been rejected or withdrawn prior to the provision by Parent time of wire transfer instructions pursuant to Section 9.2(b)(iv)such termination or the meeting), the Company then in either case, Checkpoint shall pay or cause to be paid Ultrak a termination fee of $5,000,000 payable in good funds in Dallas, TX on the next business day following notice of termination with respect to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or and (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to at the contrarytime of closing of the Acquisition Proposal, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud clause (ii).
(c) In the event the Checkpoint shareholders fail to approve the Merger by September 30, 1997 and the Ultrak shareholders approve the Merger, then Checkpoint shall pay to Ultrak its direct out-of-pocket expenses (not including in any event any constructive fraud or any fraud that is not intentional or deliberateto exceed $2,000,000) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind incurred in connection with the negotiation and execution and delivery of this Agreement and the performance of its obligations hereunder. In the event the Ultrak shareholders fail to approve the Merger by September 30, 1997 and the Checkpoint shareholders approve the Merger, then Ultrak shall pay to Checkpoint its direct out-of-pocket expenses (not to exceed $2,000,000) incurred in connection with the negotiation and execution and delivery of this Agreement and the performance of its obligations hereunder. Such payments shall be made within two (2) business days of receipt of a statement describing the expenses by payee, service and amount.
(d) Checkpoint and Ultrak agree that the covenants contained in Sections 8.5(a), (b) and (c) are an integral part of the transactions contemplated by this Agreement and constitute liquidated damages and not a penalty. If one Party fails to promptly pay to the other any fee due under Sections 8.5(a), (b) or (c), the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event defaulting Party shall the Company be obligated to pay the Termination Fee costs of expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on more than one occasionthe amount of any unpaid fee at the publicly announced prime rate of Citibank, N.A. from the date such fee was required to be paid.
Appears in 1 contract
Termination Fee. (a) If:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g8.01(b)(iii), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h8.01(d)(iii) or (C) Parent terminates this Agreement pursuant to Section 8.01(c)(i) or Section 8.01(c)(ii);
(ii) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i) and at the time of such termination, (A) the conditions set forth in Sections 7.01 and 7.03 (other than those conditions (x) that by their nature are to be satisfied by actions taken at the Closing and which were, at the time of termination, capable of being satisfied or (y) the failure of which to be satisfied is a result of a breach by the Company of any of its representations, warranties, or covenants contained in this Agreement) have been satisfied, and (B) the Marketing Period has not ended, which failure to end is a result of the Company’s failure to perform any of its obligations under this Agreement; or
(iii) (A) after the date of this Agreement, a bona fide Company Takeover Proposal has been made or is publicly proposed or announced or otherwise becomes publicly known, in each case, whether or not conditional, and is not withdrawn, (B) thereafter this Agreement is terminated prior to the Company Stockholders Meeting by either Parent or the Company pursuant to Section 8.01(b)(i) and (C) within twelve (12) months following such termination the Company or any Company Subsidiary enters into a definitive agreement to consummate a Company Takeover Proposal or a Company Takeover Proposal is consummated (solely for purposes of this Section 8.03(a), the term “Company Takeover Proposal” shall have the meaning set forth in the definition of Company Takeover Proposal contained in Section 5.04(a) except that all references to twenty percent (20%) shall be deemed references to fifty percent (50%)), then, concurrently with in any such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv))event, the Company shall pay or cause to be paid to Parent as directed by Parent a termination fee of $47,250,000 in cash (the “Company Termination Fee.
(iv”) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available same day funds to an account designated in writing by Parent as follows: (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud clause (not including i) and (ii) above, within three (3) Business Days after the date of termination; and (y) in any event any constructive fraud the case of clause (iii) above, prior to or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to simultaneously with the contrary in this Agreement, payment occurrence of the Termination Fee shall constitute liquidated damages, and from and after such termination as event described in this Section 9.2(bclause (C) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubtthereof, it being understood that in no event shall the Company be obligated required to pay the a Company Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. In the event that:
(a) (i) If after the date hereof a Takeover Proposal has been publicly announced, (Aii) after the date of such announcement and at a time that such Takeover Proposal has not been withdrawn, this Agreement is terminated by either Parent or the Company terminates this Agreement pursuant to Section 9.1(c6.1(b)(ii) or (iii), and (iii) the Company shall have entered into an agreement with respect to any Takeover Proposal (x) on or prior to the first anniversary of such termination, if such Takeover Proposal is received from a Person that, pursuant to Section 9.1(d4.2(d), was required to be identified by the Company to Parent as having made a Takeover Proposal, or (y) on or prior to the date that is three (3) months after such termination, if such Takeover Proposal is received from any other Person;
(b) after the date hereof a Takeover Proposal has been publicly announced and at a time that such Takeover Proposal has not been withdrawn, this Agreement is terminated by Parent pursuant to Section 6.1(d)(i) or (ii) as a result of a willful breach by the Company that is not cured in accordance with Section 9.1(g4.8(b);
(c) this Agreement is terminated by Parent pursuant to Section 6.1(d)(iii), (Biv), (v) or (vi); or
(d) this Agreement is terminated by the Company pursuant to Section 6.1(c)(i); then the Company shall (i) in the case of a termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(xa) of the definition of above, upon entry into a definitive agreement for such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination Takeover Proposal, or (yii) in the case of a bona fide Acquisition Proposal termination described in clause clauses (iii)(xb), (c) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such eventd) above, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to on the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination pay to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay Parent a fee of equal to $15,496,000 in cash 45,000,000 (the “"Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x") of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Energy East Corp)
Termination Fee. (a) In the event that:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) a Takeover Proposal shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been publicly made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made known to the Company or shall have been made directly to the Company’s stockholders generally or any Person shall have publicly disclosed announced an intention to make a Takeover Proposal (whether or not conditional) and in either such eventTakeover Proposal shall not have been publicly withdrawn (or if withdrawn, with respect such withdrawal occurred less than five (5) Business Days prior to which any directorthe Expiration Time), officer or employee at the level of Senior Director or above of the Company has actual knowledge(B) after the date of this Agreement and not withdrawn or expressly rejected is terminated by the Company prior or Parent pursuant to the date of such terminationSection 7.1(b)(ii) or Section 7.1(b)(iii), and (DC) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Acquisition Takeover Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely this Agreement is terminated; provided that for purposes of this Section 9.2(b)(i7.3(a)(i), the term a “Acquisition Takeover Proposal” shall have not include the meaning assigned to such term issuance by the Company (whether in Annex I, except that all references to “a single transaction or in a series of related transactions) of fifteen percent (15%” ) or “85%” therein shall be deemed to be references to “more (but less than fifty percent (50%”, and clause (iii)(x)) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇any class of equity securities of the Company for cash in a bona fide financing transaction, ▇▇▇▇-▇▇▇the purpose of which is capital raising and does not include, ▇▇▇▇-▇▇▇directly or indirectly, ▇▇▇▇-▇▇▇ and KIND-509.a related commercial arrangement;
(ii) If Parent terminates this Agreement is terminated by Parent pursuant to Section 9.1(e7.1(d)(i), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.; or
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable is terminated by the Company pursuant to the preceding clauses Section 7.1(c)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.3(a), the Company shall pay to Parent a termination fee of $2,100,000 in cash (the “Termination Fee”).
(i) Any payment required to be made pursuant to Section 7.3(a)(i) shall be paid made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by 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);
(ii) 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(d)(i) (and in any event not later than two (2) Business Days after delivery to the Company of notice of demand for payment); and
(iii) Any payment required to be made pursuant to Section 7.3(a)(iii) shall be made to Parent prior to or simultaneously with (and as a condition to the effectiveness of) termination of this Agreement by the Company pursuant to Section 7.1(c)(ii). It being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. All such payments shall be made by wire transfer of immediately available funds to an account to be designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Verenium Corp)
Termination Fee. (a) In the event that:
(i) If this Agreement is terminated by ▇▇▇▇▇▇▇▇ pursuant to Section 8.01(h);
(ii) this Agreement is terminated by the Company pursuant to Section 8.01(i);
(iii) this Agreement is terminated pursuant to Section 8.01(b) or Section 8.01(f) and (A) Parent or a Company Acquisition Proposal shall have been received by the Company terminates or its Representatives or any Person shall have publicly proposed or publicly announced an intention (whether or not conditional) to make a Company Acquisition Proposal prior to the termination of this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g)Agreement, (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed within 6 months after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months in respect of such termination to effect any Company Acquisition Proposal, then on and (C) within 12 months after the date of such consummation or such entry into a definitive agreementtermination, the Company shall pay a fee of $15,496,000 in cash consummates any Company Acquisition Proposal (the “Termination Fee”). Solely provided that for purposes of this Section 9.2(b)(iclauses (B) and (C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references each reference to “1520%” or “85%” therein in the definition of Company Acquisition Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), ; then, within three (3) business days after such termination, in the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination case of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent each of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or and (iii), the Company shall pay, or cause to be paid, to ▇▇▇▇▇▇▇▇ the Company Termination Fee.
(b) Any payment required to be made under this Section 8.03 shall be paid made by wire transfer of immediately available same-day funds to an the account or accounts designated in writing by Parent ▇▇▇▇▇▇▇▇, (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except i) in the case of common law fraud Section 8.03(a)(i), within two (not including 2) Business Days after the date of such termination, (ii) in any event any constructive fraud the case of Section 8.03(a)(ii), immediately prior to or any fraud that is not intentional substantially concurrently with such termination, and (iii) in the case of Section 8.03(a)(iii), immediately prior to or deliberate) or a Willful Breach, notwithstanding substantially concurrently with the consummation of the Company Acquisition Proposal described in Section 8.03(a)(iii)(C). Notwithstanding anything else to the contrary set forth in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, parties agree that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one (1) occasion.
(c) Notwithstanding anything to the contrary set forth in this Agreement, except in the case of fraud, if ▇▇▇▇▇▇▇▇ receives payment from the Company of the Company Termination Fee pursuant to Section 8.03(a), such payment shall constitute the sole and exclusive remedy of ▇▇▇▇▇▇▇▇, Parentco, Merger Sub I and Merger Sub II against the Company and the Company Subsidiaries and any of their respective former, current or future general or limited partners, shareholders, Representatives or assignees (together with the Company, collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.
(d) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.03 are an integral part of the Transactions, (ii) without these agreements, the parties would not enter into this Agreement and (iii) the Company Termination Fee does not constitute a penalty, but rather is liquidated damages in a reasonable amount that will compensate ▇▇▇▇▇▇▇▇ for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision. Accordingly, if the Company fails to timely pay the Company Termination Fee pursuant to this Section 8.03 and, in order to obtain such payment, ▇▇▇▇▇▇▇▇ commences an Action that results in a judgment against the Company for the payment of the Company Termination Fee set forth in this Section 8.03, the Company shall pay ▇▇▇▇▇▇▇▇ its costs and expenses in connection with such an Action (including reasonable attorneys’ fees), together with interest on such amount at an annual rate equal to the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
Appears in 1 contract
Sources: Business Combination Agreement (Haymaker Acquisition Corp. II)
Termination Fee. Any provision in this Agreement to the contrary notwithstanding:
(a) In the event that:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement 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 or expressly rejected by 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 date of Company pursuant to Section 7.1(b) or Section 7.1(d) and (C) concurrently with or within 12 months after such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters shall have entered into a definitive agreement within twelve providing for a Qualifying Transaction or shall have completed a Qualifying Transaction (12which, 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);
(ii) months of Parent shall have validly terminated this Agreement pursuant to Section 7.1(g); or
(iii) the Company shall have validly terminated this Agreement pursuant to Section 7.1(h), then, in any such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreementevent, the Company shall pay to Parent (or, at Parent’s direction, an Affiliate of Parent) a fee of $15,496,000 133 million in cash (the “Termination Fee”). Solely for purposes , by wire transfer of this Section 9.2(b)(i)same day funds to one or more accounts designated by Parent, the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed payment to be references to “50%”made, and in the case of a termination referenced in clause (iii)(xi) above, upon consummation of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇the Qualifying Transaction, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
in the case of clause (ii) If Parent terminates this Agreement pursuant to Section 9.1(e), thenabove, within three (3) business days Business Days after such terminationtermination or, in the Company shall pay or cause to be paid to Parent the Termination Fee.
case of clause (iii) If the Company terminates this Agreement pursuant to Section 9.1(h)above, then, in advance of or concurrently with such the termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (iSection 7.1(h), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud ; it being understood that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion.
(b) Anything to the contrary in this Agreement notwithstanding, except in the case of fraud, if the Company pays the Termination Fee pursuant to this Section 7.3, 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. 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 the Company fails to promptly pay any amount due pursuant to this Section 7.3, the Company shall also pay any costs and expenses (including reasonable legal fees and expenses) incurred by Parent or Merger Sub in connection with a legal action to enforce this Agreement that results in a judgment for such amount against the Company. 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 2% plus the prime rate as published in The Wall Street Journal in effect on the date of such payment.
Appears in 1 contract
Sources: Merger Agreement (CST Brands, Inc.)
Termination Fee. (i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d8.1(d) or Section 9.1(g8.1(g), or Parent terminates this Agreement pursuant to Section 8.1(c) as a result of a breach, failure to perform or violation described in such Section that (except with respect to a breach of Section 5.3(a)) first occurred following the making of an Acquisition Proposal of the type referenced in the following clause (B), (B) after the date hereof and prior to the date of such termination (or prior to the Company Stockholder Approval in the case of termination pursuant to Section 9.1(d8.1(g)), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal is publicly disclosed (other than any Acquisition Proposal described in clause (iii)(x) of whether by the definition of such term) shall have been Company or a third party), or otherwise made known to the Company Board of Directors or the Company’s management, and in each case, is not withdrawn (publicly, if publicly disclosed after disclosed) at least three (3) Business Days prior to the earlier of the date of this Agreement the Company Stockholders Meeting and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination termination, an Acquisition Proposal is consummated or the Company enters into a definitive agreement within twelve (12) months of such termination with respect to effect any an Acquisition ProposalProposal is entered into, then on or prior to the date that is the earlier of (x) the date any such Acquisition Proposal is consummated and (y) the date of entry in any such consummation or such entry into a definitive agreement, the Company shall pay to Parent a fee of nine hundred million dollars ($15,496,000 900,000,000) in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i8.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex IA, except that all references to “fifteen percent (15%)” or and “eighty five percent (85%)” therein shall be deemed to be references to “fifty percent (50%).”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d10.01(d)(i) (Superior Proposal) or Section 9.1(g), (B) in the case of termination by Parent pursuant to Section 9.1(d10.01(c)(i) (Adverse Recommendation Change), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent in immediately available funds $20,000,000 (such fee, the “Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h”), thenin the case of a termination by Parent, concurrently with within two Business Days after such termination and, in the case of this Agreement a termination by the Company Company, immediately before and as set forth in Section 9.1(h) a condition to such termination (or, if later, promptly following after Parent’s written request thereof).
(ii) If, prior to receipt of the provision Company Stockholder Approval, (A) this Agreement is terminated by Parent or the Company pursuant to (1) Section 10.01(b)(i) (End Date), (2) Section 10.01(b)(iii) (Company No Vote) or (3) Section 10.01(c)(ii) (Material Breach), (B) after the date of wire transfer instructions this Agreement and prior to the date of such termination of this Agreement in accordance with Article 10, an Acquisition Proposal shall have been made to the Company or publicly announced and not withdrawn prior to the date of termination (in the case of a termination pursuant to Section 9.2(b)(iv10.01(b)(i) (End Date) or Section 10.01(c)(ii) (Material Breach)) or the date of the Company Stockholder Meeting (in the case of a termination pursuant to Section 10.01(b)(iii) (Company No Vote)) and (C) within 12 months after the date of such termination, the Company or one or more of its Subsidiaries enters into a definitive agreement in respect of, or the Board of Directors approves or recommends, any Acquisition Proposal, or any Acquisition Proposal is consummated (provided that for purposes of this Section 11.04(b)(ii), each reference to “20%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”), then the Company shall pay or cause to be paid to Parent in immediately available funds, concurrently with the earlier of the execution, approval, recommendation or consummation of such Acquisition Proposal, the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. Other than as set forth below, the Company shall promptly, but (iexcept in the case of clause (B) If below) in no event later than two (2) Business Days after the date of termination pursuant to the sections of this Agreement as set forth below, pay Parent a fee equal to One Hundred Twenty-Seven Million Dollars ($127,000,000) (the “Termination Fee”) in the event that this Agreement is (A) terminated by Parent pursuant to Section 7.1(d); (B) terminated by the Company pursuant to Section 7.1(g), provided that in the case of termination under Section 7.1(g), payment of the Termination Fee by the Company shall be made concurrently with such termination, or (C) terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c7.1(b), Section 9.1(d7.1(f) or Section 9.1(g7.1(i), (B) ; provided that in the case of termination pursuant to Section 9.1(d7.1(b), all Section 7.1(f) (on account of the conditions set forth in Section 8.1 a knowing and Section 8.3 (intentional breach of one or more covenants and agreements other than Section 8.3(c)5.2 or Section 5.3) or Section 7.1(i) such payment (1) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been be made to the Company or publicly disclosed only if after the date of this Agreement and not withdrawn prior to the date such termination, there has been disclosure publicly of such termination or (y) a bona fide an Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made with respect to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months following the termination of such termination this Agreement, an Acquisition of the Company is consummated or the Company enters into a definitive agreement within with a third Person with respect to an Acquisition of the Company and (2) shall be made no later than the earlier of (x) the consummation of such Acquisition of the Company and (y) twelve (12) months following the termination of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, this Agreement; provided further that the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation excused of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated its obligation to pay the Termination Fee by reason of the termination or abandonment of any such definitive agreement with respect to the Acquisition. Notwithstanding the foregoing in this Section 7.3(b)(i), no Termination Fee shall be payable with respect to any termination pursuant to Section 7.1(b) under circumstances where (x) Parent’s or Merger Sub’s breach of this Agreement was the principal cause of the failure of the Merger Closing Date to occur on more than one occasionor before the End Date, or (y) the condition set forth in Section 6.1(c) has not been satisfied prior to termination and the Company’s breach of this Agreement was not the principal cause of the failure of the satisfaction of, Section 6.1(c) on or before the End Date.
Appears in 1 contract
Sources: Merger Agreement (Broadcom Corp)
Termination Fee. (a) In the event that this Agreement is terminated:
(i) If by either BB&T or Premier pursuant to Section 7.1(e) and (A) Parent at the time of the meeting of the Premier shareholders referred to in Section 5.1 (or at any adjournment thereof) a Premier Acquisition Proposal exists or (B) prior to such shareholders' meeting, Premier's Board of Directors shall have withdrawn its recommendation or refused to recommend to the Company terminates this Agreement shareholders of Premier that they vote to approve the Plan of Merger;
(ii) by BB&T pursuant to Section 9.1(c7.1(g), ; or
(iii) by BB&T pursuant to Section 9.1(d7.1(b) or Section 9.1(g7.1(c) (solely with respect to a breach by Premier of Section 5.9(k), );
(Biv) in the case of termination by Premier pursuant to Section 9.1(d), all 7.1(c) (solely with respect to the failure of the conditions condition set forth in Section 8.1 and 6.2(f) to be satisfied);
(v) by Premier pursuant to Section 8.3 (other 7.1(h) then Premier shall promptly, but in no event later than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed two business days after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such pay to BB&T as compensation for the Merger not becoming effective a termination or the Company enters into a definitive agreement within twelve (12) months of such termination fee equal to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash 10 million (the “"Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x") of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent)funds. Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the The Termination Fee shall constitute liquidated damagesbe payable without regard to any expenses to be paid pursuant to Section 8.1.
(b) Premier acknowledges that the agreements contained in Section 7.6(a) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, BB&T would not enter into this Agreement; accordingly, if Premier fails promptly to pay any amount due pursuant to Section 7.6(a), and, in order to obtain such payment, BB&T commences a suit which results in a judgment against Premier for all or a substantial portion of the payment set forth in Section 7.6(a), Premier shall pay to BB&T its costs and from and after such termination as described in this Section 9.2(bexpenses (including reasonable attorneys' fees) the Company shall have no further liability or obligations of any kind in connection with this Agreement or such suit, together with interest on the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Premier Termination Fee from the date for payment until the date of such payment at the prime rate of Branch Banking and Trust Company in effect on more than one occasionthe date such payment was required to be made plus two percentage points.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Premier Bancshares Inc /Ga)
Termination Fee. (a) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii) (Superior Proposal), the Company shall pay or cause to be paid as directed by Parent the Termination Fee prior to or concurrently with the termination of this Agreement.
(b) In the event that this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii) (Company Adverse Recommendation Change), the Company shall pay or cause to be paid as directed by Parent the Termination Fee within three (3) Business Days of such termination.
(c) In the event that this Agreement is terminated (i) If (A) by Parent or the Company terminates this Agreement pursuant to Section 9.1(c7.1(b)(i) (End Date) (provided that the Company Stockholders Meeting has not yet occurred at the time of termination), by Parent or the Company pursuant to Section 9.1(d7.1(b)(iii) (Company Stockholder Approvals) or by Parent pursuant to Section 7.1(c)(i) (Company Breach), (ii) an Alternative Proposal shall have been publicly disclosed or shall have become publicly known (or, in the case of a termination pursuant to Section 7.1(b)(i) (End Date) or Section 9.1(g7.1(c)(i) (Company Breach), (Bshall have become known to the Company Board) after the date hereof and, in the case of termination pursuant to Section 9.1(d7.1(b)(iii) (Company Stockholder Approvals), all of the conditions set forth in Section 8.1 and Section 8.3 such Alternative Proposal shall not have been publicly withdrawn (other than Section 8.3(c)) or, with respect to any such Alternative Proposal that shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made become known to the Company or Board but not publicly disclosed after the date of this Agreement and not withdrawn or known, otherwise withdrawn) at least five (5) Business Days prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationStockholders Meeting, and (Diii) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date that this Agreement is terminated, the Company enters into a definitive agreement within twelve (12) months of such termination Company Acquisition Agreement with respect to effect or consummates any Acquisition Alternative Proposal, then on regardless of whether it was the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 same Alternative Proposal referenced in cash clause (the “Termination Fee”). Solely ii) (provided that for purposes of clause (iii) of this Section 9.2(b)(i7.3(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or in the definition of “85%Alternative Proposal” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, then the Company shall pay or cause to be paid to as directed by Parent the Termination FeeFee on the earlier of entry into such Company Acquisition Agreement or consummation of such Alternative Proposal.
(iiid) If For purposes of this Agreement, “Termination Fee” shall mean a cash amount equal to $50,000,000, except that in the Company terminates event that this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement is terminated by the Company as set forth in Section 9.1(h(x) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses Section 7.1(d)(ii) (i), (iiSuperior Proposal) in order to enter into a definitive agreement providing for a Superior Proposal with an Excluded Party or (iiiy) shall be paid by wire transfer of immediately available funds Parent pursuant to an account designated in writing by Parent Section 7.1(c)(ii) (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberateCompany Adverse Recommendation Change) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or a Company Adverse Recommendation Change resulting from a Superior Proposal with an Excluded Party and not in respect of an Intervening Event, the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event “Termination Fee” shall the Company be obligated mean a cash amount equal to pay the Termination Fee on more than one occasion$25,000,000.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) Parent a bona fide proposal or the Company terminates this Agreement pursuant offer with respect to Section 9.1(ca Competing Transaction shall have been made, proposed or communicated (and not withdrawn), Section 9.1(d) or Section 9.1(g)after the date hereof and prior to the termination of this Agreement, (B) following the occurrence of an event described in the case of termination preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 9.1(d8.02(a) or Section 8.02(b), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months after the termination of such termination or this Agreement, the Company or any of its Subsidiaries consummates, or enters into a definitive agreement within twelve in connection with, any Competing Transaction by a Third Party (12in each case whether or not the Competing Transaction was the same Competing Transaction referred to in clause (A)) months of such termination to effect any Acquisition Proposal(provided, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 9.2(b)(i8.06(a), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or in the definition of “85%Competing Transaction” therein shall be deemed to be references to “50100%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.);
(ii) If Parent terminates this Agreement is terminated by Parent pursuant to Section 9.1(e8.04 (other than Section 8.04(a) solely due to a breach of Section 6.06), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.; or
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable is terminated by the Company pursuant to the preceding clauses (iSection 8.03(c) or 8.03(d), then the Company shall pay, or cause to be paid, to Parent or its designees an amount in cash equal to US$2,880,000 (iithe “Company Termination Fee”) or (iii) shall be paid by wire transfer of immediately available same day funds to an account designated as promptly as possible (but in writing by Parent any event (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of x) within two (2) Business Days after such account by Parent). Except termination in the case of common law fraud a termination referred to in clause (not including ii) above, (y) at least two (2) Business Days prior to and as a condition of the consummation by the Company of a Competing Transaction or entry by the Company into the definitive agreement in connection with a Competing Transaction in the case of a termination referred to in clause (i) above, or (z) prior to or concurrently with the termination of this Agreement in case of a termination pursuant to clause (iii) above); it being agreed that in no event shall the Company be required to pay the Company Termination Fee more than once.
(b) Parent will pay, or cause to be paid, to the Company an amount in cash equal to US$5,750,000 (the “Parent Termination Fee”) if this Agreement is terminated by the Company pursuant to Section 8.03(a) or Section 8.03(b), such payment to be made as promptly as possible (but in any event any constructive fraud or any fraud that is not intentional or deliberatewithin two (2) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and Business Days after such termination by wire transfer of same day funds); it being agreed that in no event shall Parent be required to pay the Parent Termination Fee more than once.
(c) Except as described otherwise specified in this Section 9.2(b) the Company shall have no further liability or obligations of any kind 8.06(d), all expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such expenses, whether or not the Merger or any other Transaction is consummated.
(d) In the event that the Company fails to pay the Company Termination Fee, or Parent fails to pay the Parent Termination Fee, when due and in accordance with the requirements of this Agreement, the Company or Parent, as the case may be, shall reimburse the other party for reasonable costs and expenses actually incurred or accrued by the other party (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.06, together with interest on such unpaid Company Termination Fee or Parent Termination Fee, as the case may be, such interest commencing on the date that the Company Termination Fee or Parent Termination Fee, as the case may be, became due, at the prime rate as published in The Wall Street Journal on such date plus 2.00% or a lesser rate that is the maximum permitted by applicable Law. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder.
(e) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 8.06 are an integral part of the Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination Fee or Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 8.06(a) or Section 8.06(b) are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount that will compensate Parent or the termination contemplated hereby other than Company, as provided under the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without the agreements contained in this Section 9.2(b8.06, the parties hereto would not have entered into this Agreement.
(f) (i) Subject to Section 9.08, the Equity Commitment Letter and the Limited Guarantee, in the event that Parent or Merger Sub fails to effect the Closing for any reason or no reason or they otherwise breach this Agreement or otherwise fail to perform hereunder, then the Company’s right to terminate this Agreement and receive the Parent Termination Fee pursuant to Section 8.06(b) and costs and expenses under Section 8.06(d) and the guarantee of such obligations pursuant to the Limited Guarantee (subject to their terms, conditions and limitations), shall be the sole and exclusive remedy of any Group Company and all members of the Company Group against (A) Parent, Merger Sub, the Guarantor, the Rollover Shareholders and Founder, (B) the former, current and future direct or indirect holders of any equity, general or limited partnership or limited partnership or limited liability company interest, controlling persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of Parent, Merger Sub, the Guarantor any Rollover Shareholder or Founder, (C) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent, Merger Sub or Founder, or (D) any former, current or future direct or indirect holders any equity, general or limited partnership or limited liability company interest, controlling persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of any of the foregoing (clauses (A) through (D) of this Section 8.06(f), collectively, the “Parent Group”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement or failure to perform hereunder or other failure of the Merger or the other Transactions to be consummated. For the avoidance of doubt, neither Parent nor any other member of the Parent Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Equity Commitment Letter and the Limited Guarantee) other than the payment of the Parent Termination Fee pursuant to Section 8.06(b) and the costs and expenses pursuant to Section 8.06(d), and in no event shall any Group Company, the direct or indirect shareholders of the Company or any other Group Company, or any of their respective Affiliates, directors, officers, employees, members, managers, partners, representatives, advisors or agents of the foregoing (collectively, the “Company Group”), seek, or permit to be obligated sought, on behalf of any member of the Company Group, any monetary damages from any member of the Parent Group in connection with this Agreement or any of the Transactions (including the Equity Commitment Letter and the Limited Guarantee), other than (without duplication) from Parent or Merger Sub to pay the Termination Fee on more than one occasionextent provided in Section 8.06(b) and Section 8.06(d), or the Guarantor to the extent provided in the Limited Guarantee.
Appears in 1 contract
Sources: Merger Agreement (TDCX Inc.)
Termination Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Parent while pursuing the Merger, in the event that:
(i) If this Agreement is terminated by Parent pursuant to Section 8.1(f);
(ii) (A) Parent or an Acquisition Proposal with respect to the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied communicated to or waivedotherwise made known to the stockholders, and senior management or Board of Directors of the Company, or any Person or group of Persons shall have publicly announced an intention (Cwhether or not conditional) (x) a bona fide to make an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made with respect to the Company or publicly disclosed after the date of this Agreement, (B) thereafter this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e) (if the Requisite Company Stockholder Vote has not theretofore been obtained), (2) by Parent pursuant to Section 8.1(d) for breach by the Company under Section 6.1 or 6.3 or (3) by Parent or the Company pursuant to Section 8.1(c) and not withdrawn (C) prior to the date that is twelve (12) months after the date of such termination or (y) the Company consummates a bona fide Acquisition Proposal described transaction of a type set forth in clause (iii)(x) of the definition of such term shall have been made “Acquisition Proposal” or enters into any definitive agreement relating to a transaction of a type set forth in the Company or shall have been publicly disclosed definition of “Acquisition Proposal”; or
(and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledgeiii) after the date of this Agreement and not withdrawn or expressly rejected is terminated by the Company prior pursuant to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreementSection 8.1(g); then, the Company shall pay to Parent, by wire transfer of immediately available funds, a termination fee of equal to $15,496,000 in cash 10,000,000 (the “Termination Fee”). Solely for purposes ) within two (2) Business Days following the date of this such termination; provided, that any Termination Fee payable pursuant to Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein 8.3(a)(ii) shall be deemed to be references to “50%”, and clause (iii)(x) paid on the earlier of the date such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509transaction is consummated or such definitive agreement is entered into.
(iib) If Parent terminates and the Company each agree that the agreements contained in this Agreement pursuant Section 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 any amounts due under this Section 9.1(e)8.3 and, thenin order to obtain such payment, within three (3) business days after Parent commences a suit that results in a judgment against the Company for such terminationamounts, the Company shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal (or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(hany reasonably similar successor publication thereto), thendesignated therein as the “prime rate” on the date such payment was due, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), plus (ii) or (iii) shall be paid by wire transfer 100 basis points, together with the costs and expenses of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberatereasonable legal fees and expenses) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionsuch suit.
Appears in 1 contract
Termination Fee. If (i) If this Agreement is terminated by Cardurion pursuant to Section 8.1.1(g), or (ii) (A) Parent after the Execution Date, an Acquisition Proposal shall have been publicly announced or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g)made known and not withdrawn, (B) in the case of termination thereafter this Agreement is terminated by Cardurion or Imara pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)8.1.1(f) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than at any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company time on or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date one-year anniversary of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination Imara completes or the Company enters into a definitive agreement within twelve providing for, or consummates, a transaction that constitutes an Acquisition Proposal (12) months with all references to “fifteen percent (15%)” in the definition of such termination Acquisition Proposal being deemed to effect any be references to “fifty percent (50%)” and disregarding the proviso in the definition of Acquisition Proposal), whether or not such Acquisition Proposal is the same as the original Acquisition Proposal made, communicated or publicly announced or made known and not withdrawn, then on the date of such consummation or such entry into a definitive agreement, the Company Imara shall pay a fee of to Cardurion One Million Five Hundred Thousand Dollars ($15,496,000 in cash 1,500,000) (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid cash by wire transfer of immediately available funds to an the account designated in writing by Parent ▇▇▇▇▇▇▇▇▇, (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except 1) in the case of common law fraud clause (not including i), within [**] following such termination, and (2) in any event any constructive fraud the case of clause (ii), upon the earlier to occur of the consummation of such transaction or any fraud that is not intentional or deliberate) or Imara’s entry into a Willful Breach, notwithstanding definitive agreement with respect to such transaction. Notwithstanding anything else to the contrary in this Agreement, if the full Termination Fee shall become due and payable in accordance with this Section 8.1.3, from and after such termination and payment of the Termination Fee shall constitute liquidated damages, in full pursuant to and from and after such termination as described in accordance with this Section 9.2(b) the Company 8.1.3, other than with respect to claims for fraud, neither Imara nor any of its Affiliates or representatives shall have no any further liability or obligations Liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as provided under set forth in this Section 9.2(b)8.1.3. For the avoidance of doubt, in In no event shall the Company Imara be obligated required to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) In the event that this Agreement is terminated by:
(i) If the Company pursuant to Section 7.1(e)(ii);
(ii) Parent pursuant to Section 7.1(d); or
(iii) by the Company or Parent pursuant to Section 7.1(b)(iii) if, prior to the Company Stockholders Meeting: (A) Parent a Takeover Proposal shall have been publicly disclosed, announced, commenced, submitted or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), made; (B) such Takeover Proposal shall not have been withdrawn at least five days prior to the Company Stockholders Meeting; and (C) within 180 days after the date of the termination of this Agreement, the Company and the Person who had commenced, submitted or made such Takeover Proposal consummate an Acquisition Transaction, then, in the case of clause “(i)” and clause “(ii)” of this sentence, at the time of termination pursuant to Section 9.1(dor, in the case of clause “(iii)” of this sentence, all at the time of consummation of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described Transaction referred to in clause “(iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date iii)” of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreementsentence, the Company shall pay to Parent, a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be 1,622,000 minus any amounts previously paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (iSection 7.3(b), (ii) or (iii) in cash. Such payment shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent.
(b) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iii), the Company shall reimburse Parent for reasonable, documented, out-of-pocket Expenses incurred by Parent (and, notwithstanding anything herein and Merger Sub in an amount not to the contrary, exceed $500,000. Such payment shall not be required prior made by wire transfer of immediately available funds to an account to be designated by Parent within 10 business days of the designation Company’s receipt of adequate documentation of the amount of such account by Parent). Except in the case Expenses.
(c) For purposes of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment an “Acquisition Transaction” means any transaction or series of transactions involving: (A) an acquisition (whether in a single transaction or a series of related transactions) of assets of the Termination Fee shall constitute liquidated damages, Company and from and after such termination as described in this Section 9.2(b) its Subsidiaries having a fair market value equal to 50% or more of the consolidated assets of the Company shall have no further liability and its Subsidiaries, taken as a whole; (B) a direct or obligations indirect acquisition (whether in a single transaction or a series of related transactions) of 50% or more of the voting power of the Company; (C) a tender offer or exchange offer that if consummated would result in any Person beneficially owning 50% or more of the voting power of the Company; or (D) a merger, consolidation, share exchange, business combination, recapitalization or similar transaction involving the Company or involving any Subsidiary (or Subsidiaries) (other than: (1) mergers, consolidations, business combinations or similar transactions involving solely the Company and/or one or more Subsidiaries of the Company; and (2) mergers, consolidations, business combinations or similar transactions that if consummated would result in a Person beneficially owning not more than 50% of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance class of doubt, in no event shall equity securities of the Company be obligated to pay the Termination Fee on more than one occasionor any of its Subsidiaries.
Appears in 1 contract
Termination Fee. (a) If this Agreement is terminated by the Company pursuant to (i) If Section 8.1(g) or (Aii) Section 8.1(d) due to a Willful Breach of Section 6.3, Parent or will pay to the Company terminates the Termination Fee no later than two Business Days after the termination of this Agreement.
(b) If this Agreement is terminated by (i)(x) either the Company or Parent pursuant to Section 9.1(c), Section 9.1(d8.1(e) or (y) the Company pursuant to Section 9.1(g), 8.1(d) and (Bii) a Parent Alternative Proposal is publicly proposed or publicly disclosed and not publicly withdrawn at least three (3) business days prior to the date of the Parent Stockholder Meeting in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)8.1(e) or a Parent Alternative Proposal shall have been satisfied or waivedbecome known to the Parent Board in the case of a termination pursuant to Section 8.1(d), and (Ciii) (x) Parent enters into a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, definitive agreement with respect to which any directorto, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationconsummates, and (D) any Acquisition a Parent Alternative Proposal is consummated within twelve (12) months after the date this Agreement is terminated, then Parent will pay to the Company the Termination Fee (net of any Company Expenses previously paid) upon the occurrence of the earlier of such termination or the Company enters into a definitive agreement within twelve events. For purposes of clause (12iii) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i8.3(b), any reference in the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references definition of Parent Alternative Proposal to “15%” or “85%” therein shall be deemed to be references a reference to “50%.”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(iic) If the Company or Parent terminates this Agreement pursuant to Section 9.1(e8.1(e), then, within three (3) business days after such termination, then Parent shall pay the Company shall pay or cause to be paid to Parent the Termination FeeCompany Expenses no later than two Business Days after notice of termination of this Agreement.
(iiid) If the Company terminates this Agreement is terminated by Parent pursuant to Section 9.1(h8.1(f) (Parent Superior Proposal), then, concurrently Parent will pay to the Company the Termination Fee prior to or contemporaneously with such the termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination FeeAgreement.
(ive) Any amount payable by payment of the Termination Fee or the Company pursuant to the preceding clauses (i), (ii) or (iii) shall Expenses will be paid made in cash by wire transfer of immediately available same day funds to an account designated in writing by the recipient of such payment.
(f) Each of the parties acknowledges that the provisions of this Section 8.3 are an integral part of the transactions contemplated hereby and that, without these agreements, the Company would not enter into this Agreement. Accordingly, if Parent fails to promptly pay the amount due pursuant to this Section 8.3 and if the Company commences a suit that results in a judgment against Parent for the amount set forth in this Section 8.3 or a portion thereof, Parent shall pay the Company (i) all fees, costs and expenses of enforcement (including attorneys’ fees as well as expenses incurred in connection with any such action) and (ii) interest on such amount or such portion thereof at the prime lending rate as published in the Wall Street Journal, in effect on the date such payment is required to be made. The amounts payable by Parent pursuant to Section 8.3(a) constitute liquidated damages and not a penalty, and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except other than in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else shall be, together with any amounts payable pursuant to this Section 8.3(f), the contrary sole monetary remedy for the Company in the event of a termination of this Agreement, payment of Agreement where the Termination Fee shall constitute liquidated damages, is payable by Parent and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionis actually paid to the Company.
(g) As used herein, “Termination Fee” means a cash amount equal to $22,500,000.
Appears in 1 contract
Sources: Merger Agreement (Bill Barrett Corp)
Termination Fee. In the event that:
(i) If (Ax) before obtaining the Company Requisite Vote, this Agreement is terminated by Parent or the Company terminates pursuant to (1) Section 7.2(a) or (2) Section 7.2(b), (y) any Person shall have made (and not subsequently withdrawn prior to the event giving rise to such termination) a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination and (z) within 12 months of such termination the Company shall have entered into a definitive agreement with respect to such Acquisition Proposal, or a transaction contemplated by an Acquisition Proposal is otherwise consummated within 12 months of such termination (provided that for purposes of this clause (z) the references to “25% or more” in subsections (1) and (2) of the definition of “Acquisition Proposal” shall be deemed to be references to “more than 75%”);
(ii) this Agreement is terminated by Parent pursuant to Section 9.1(c7.4(a); or
(iii) this Agreement is terminated by the Company pursuant to Section 7.3(a); then the Company shall (A) in the case of clause (i) of this Section 7.5(b), substantially concurrently with the entry into a definitive agreement with respect to or consummation (as the case may be) of the Acquisition Proposal referred to in sub-clause (i)(z) of this Section 9.1(d) or Section 9.1(g7.5(b), (B) in the case of termination pursuant to clause (ii) of this Section 9.1(d7.5(b), all of the conditions set forth in Section 8.1 and Section 8.3 (other no later than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed two Business Days after the date of this Agreement and not withdrawn prior to the date of such termination or and (yC) a bona fide Acquisition Proposal described in the case of clause (iii)(xiii) of this Section 7.5(b), substantially concurrently with such termination, pay the definition of Termination Fee to American Securities LLC and P2 Capital Partners, LLC (or their respective designees) in such term shall have been made amounts as Parent notifies to the Company or in writing (which amounts collectively shall have been publicly disclosed (and in either such eventnot, with respect to which any directorfor the avoidance of doubt, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent exceed the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud it being understood that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion).
Appears in 1 contract
Termination Fee. (i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the The Company shall pay a fee of $15,496,000 in cash to Brookfield Asset Management Private Institutional Capital Adviser (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(iPrivate Equity), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent L.P. the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid Fee by wire transfer of immediately available funds to an account designated in writing by Parent if:
(andi) this Agreement is terminated by Parent pursuant to Section 9.2(e), notwithstanding anything herein to the contraryin which case, payment shall not be required made promptly, and in any event within two (2) Business Days after such termination;
(ii) this Agreement is terminated by the Company pursuant to Section 9.2(c)(ii), in which case, payment shall be made concurrently with such termination; provided, however, that if this Agreement is terminated by the Company pursuant to Section 9.2(c)(ii) to accept a Superior Proposal from an Excluded Party prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful BreachNo-Shop Period Start Date, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damagesequal the Go-Shop Termination Fee; or
(iii) (A) this Agreement is terminated (x) by the Company or Parent pursuant to Section 9.2(b)(i) (unless the Company would have been entitled to terminate this Agreement pursuant to Section 9.2(c)(i) but for such termination pursuant to Section 9.2(b)(i)), or (y) by Parent pursuant to Section 9.2(d) and (B) within twelve (12) months following the date of such termination, the Company consummates any transaction in respect of an Acquisition Proposal or enters into an agreement in respect of an Acquisition Proposal which is later consummated, in which case, payment shall be made promptly, and from and in any event within two (2) Business Days, after such termination as described in this Section 9.2(b) the date on which the Company shall have no further liability or obligations consummates such transaction in respect of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionsuch Acquisition Proposal.
Appears in 1 contract
Termination Fee. (i) If (A) (x) Parent or terminates this Agreement pursuant to Section 8.1(d), (y) the Company terminates this Agreement pursuant to Section 9.1(c8.1(d) and at such time Parent would be permitted to terminate this Agreement pursuant to Section 8.1(d), or (z) Parent terminates this Agreement pursuant to Section 9.1(d8.1(c) as a result of a breach, failure to perform or violation described in such Section 9.1(gthat (except with respect to a breach of Section 5.3(a)) first occurred following the making of an Acquisition Proposal of the type referenced in the following clause (B), (B) after the date hereof and prior to the date of such termination (except in the case of termination pursuant to Section 9.1(d8.1(g), all of in which case prior to the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xCompany Stockholder Approval being obtained) a bona fide Acquisition Proposal is publicly disclosed (other than any Acquisition Proposal described in clause (iii)(x) of whether by the definition of such term) shall have been Company or a third party), or otherwise made known to the Company Board of Directors or Company management, and in each case, is not withdrawn (publicly, if publicly disclosed after disclosed) at least three (3) Business Days prior to the earlier of the date of this Agreement the Company Stockholders Meeting and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination termination, an Acquisition Proposal is consummated or the Company enters into a definitive agreement within twelve (12) months in respect of such termination to effect any an Acquisition ProposalProposal is entered into, then on or prior to the date that is the earlier of (1) the date any such Acquisition Proposal is consummated and (2) the date of entry in any such consummation or such entry into a definitive agreement, the Company shall pay to Parent a fee of $15,496,000 450,000,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i8.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex IA, except that all references to “fifteen percent (15%)” or and “eighty five percent (85%)” therein shall be deemed to be references to “fifty percent (50%).”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) before obtaining the Company Stockholder Approval, this Agreement is terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d7.1(b)(i) or Section 9.1(g7.1(b)(ii), or by Parent pursuant to Section 7.2(c) as a result of a breach by the Company of any of its covenants or agreements set forth in this Agreement, (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) any Person shall have been satisfied or waived, and (C) (x) made a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such eventor, with respect to which any directora termination pursuant to Section 7.1(b)(ii), officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, Company Stockholders Meeting and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date this Agreement is terminated, the Company enters into a definitive agreement within twelve with respect to an Acquisition Proposal or an Acquisition Proposal is consummated (12which, for the avoidance of doubt, need not be the same Acquisition Proposal described in clause (B)), or the Board of Directors shall have recommended to the Company’s stockholders an Acquisition Proposal (which, for the avoidance of doubt, need not be the same Acquisition Proposal described in clause (B)) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 9.2(b)(iclause (C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein in the definition of Acquisition Proposal shall be deemed to be references to “50%”), and clause (iii)(x) then on the date of such “Acquisition Proposal” definition recommendation, consummation or execution of such agreement, whichever is earliest, the Company shall be deemed pay to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.Parent the Termination Fee by wire transfer; or
(ii) If Parent terminates this Agreement is terminated by the Parent pursuant to Section 9.1(e7.2(a) or Section 7.2(b), then, within then no later than three (3) business days Business Days after the date of such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.Fee by wire transfer; or
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable is terminated by the Company pursuant to the preceding clauses (iSection 7.3(a), (ii) or (iii) shall be paid by wire transfer of then immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to or substantially concurrently with such termination the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else Company shall pay to the contrary in this Agreement, payment of Parent the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, by wire transfer; it being understood that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 9.1(c), Section 9.1(d7.01.b)i) or Section 9.1(g), (B7.01(b)(iii) in the case of termination or this Agreement is terminated by Parent pursuant to Section 9.1(d)7.01.c)i) as a result of a knowing and intentional breach by the Company of Section 5.02; provided that, all of the conditions set forth in Section 8.1 and Section 8.3 each case, (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xA) a bona fide Acquisition Takeover Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed made, proposed or communicated by a third party (and in either or such event, with respect Takeover Proposal has otherwise been made known to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledgeBoard and shall have become publicly known) after the date of this Agreement and such Takeover Proposal has not been unconditionally withdrawn or expressly rejected by the Company prior to the date of time this Agreement is terminated and (B) within 12 months after such termination, and (D) the Company consummates any Acquisition transaction included within the definition of Takeover Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement with respect to any transaction included within twelve (12) months the definition of Takeover Proposal and such termination to effect transaction is subsequently consummated at any Acquisition Proposaltime, then on in each case, whether or not involving the date of such consummation same Takeover Proposal or such entry into a definitive agreement, the Person or group making the Company shall pay a fee of $15,496,000 the Takeover Proposal referred to in cash clause (the “Termination Fee”A). Solely ; provided that, for purposes of clauses (B) of this Section 9.2(b)(i7.03.a)i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If this Agreement is terminated (A) by Parent terminates pursuant to Section 7.01(c)(ii) or, if Parent would have been entitled to terminate this Agreement pursuant to Section 9.1(e), then, within three (37.01(c)(ii) business days after such termination, prior to or at the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If time the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement 7.01(b)(i) or Section 7.01(b)(iii) or (B) by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv7.01.d)ii); then, in any such event under clauses (i) or (ii) of this Section 7.03(a), the Company shall pay or cause to be paid the applicable Company Termination Fee to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid its designee by wire transfer of immediately available same-day funds to an account designated in writing by so long as Parent has provided the Company with wire instructions for such payment (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 7.03.a)ii)(A), within two Business Days after such termination, (not including y) in any event any constructive fraud or any fraud that is not intentional or deliberate) or the case of Section 7.03.a)ii)(B), simultaneously with (and as a Willful Breach, notwithstanding anything else condition to the contrary effectiveness of) such termination or (z) in this Agreementthe case of Section 7.03.a)i), payment concurrently with the consummation of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Takeover Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay or cause to be paid the applicable Company Termination Fee on more than one occasion. As used herein, “Company Termination Fee” shall mean a cash amount equal to $40,000,000.
(b) Each of the parties hereto acknowledges (i) that the agreements contained in this Section 7.03 are an integral part of the Transactions and (ii) that the Company Termination Fee is not a penalty, but a reasonable amount that will compensate Parent and Merger Sub in the circumstances in which such payment is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and the expectation of the consummation of the Transactions and (iii) that without these agreements, the other parties hereto would not enter into this Agreement. Accordingly, if the Company fails to timely pay or cause to be paid any amount due pursuant to this Section 7.03, and, in order to obtain the payment, Parent commences an Action which results in a Judgment against the Company, for the payment set forth in this Section 7.03, the Company shall pay or cause to be paid Parent’s reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Action, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received.
(c) Except in the case of fraud or a knowing and intentional breach of this Agreement by the Company and subject in all respects to Parent’s injunction, specific performance and equitable relief rights and related rights set forth in Section 8.08 and the reimbursement obligations of the Company under Section 7.03.b), in the event the applicable Company Termination Fee is paid to Parent in circumstances for which such fee is payable pursuant to Section 7.03.a), payment of the applicable Company Termination Fee shall be the sole and exclusive monetary damages remedy of Parent against the Company and its Subsidiaries and 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 to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions. While each of the Company and Parent may pursue both a grant of specific performance in accordance with Section 8.08 and the payment of the Company Termination Fee under Section 7.03, under no circumstances shall Parent be permitted or entitled to receive both a grant of specific performance that results in a Merger Closing and any money damages, including all or any portion of the Company Termination Fee.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Zimmer Biomet Holdings, Inc.)
Termination Fee. (i) If this Agreement is terminated by Emerson pursuant to Section 11.01(c)(i) or Section 11.01(c)(iii) (in each case, without the Aspen Stockholder Approval having been previously obtained), then Aspen shall pay to Emerson, within one Business Day after such termination, in immediately available funds $325,000,000 (the “Termination Fee”) to an account specified by Emerson upon such termination.
(ii) If (A) Parent or the Company terminates this Agreement is terminated by Emerson or Aspen pursuant to Section 9.1(c11.01(b)(i) (but, for clarity, only if at such time Emerson would not be prohibited from terminating this Agreement by the proviso in Section 11.01(b)(i), Section 9.1(d) or Section 9.1(g11.01(b)(iii) or by Emerson pursuant to Section 11.01(c)(ii) (but, for clarity, only if at such time Emerson would not be prohibited from terminating this Agreement by the proviso in Section 11.01(c)(ii)) (in each case, without the Aspen Stockholder Approval having been obtained or, if such termination is after the Aspen Stockholder Approval has been obtained, as a result of a willful and material breach by Aspen), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to such termination, an Acquisition Proposal shall have been publicly announced or otherwise been communicated to the Board of Directors of Aspen or its stockholders and (C) within 12 months following the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters Aspen shall have entered into a definitive agreement within twelve with respect to or recommended to its stockholders an Acquisition Proposal or an Acquisition Proposal shall have been consummated (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 9.2(b)(iclause (C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references each reference to “15%” or “85%” therein in the definition of Acquisition Proposal shall be deemed to be references a reference to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company then Aspen shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), thenEmerson in immediately available funds, concurrently with such termination the occurrence of this Agreement by the Company as set forth applicable event described in Section 9.1(h) clause (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)C), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds Fee to an account designated in writing specified by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of Emerson upon such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasiontermination.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Merger (Emerson Electric Co)
Termination Fee. (a) In the event that this Agreement is terminated by:
(i) If the Company pursuant to Section 7.1(e)(iii), or by Parent pursuant to Section 7.1(d);
(Aii) by Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d7.1(b)(iii) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above time of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationStockholders Meeting, and a Takeover Proposal (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i7.3(a)(ii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15"20%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) " in the definition of such “Acquisition "Takeover Proposal” definition " shall be deemed to refer only to ▇▇▇▇-▇▇▇"50%" instead) has been publicly announced (and not withdrawn) and within twelve months after the date of the termination of this Agreement, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.an Acquisition Transaction is consummated with the Third Party making such Takeover Proposal; or
(iiiii) If Parent terminates this Agreement by the Company pursuant to Section 9.1(e7.1(b)(i) and at the Outside Date, a Takeover Proposal (for purposes of this Section 7.3(a)(iii), thenall references to "20%" in the definition of "Takeover Proposal" shall be deemed to refer to "50%" instead) has been publicly announced (and not withdrawn) and within twelve months after the date of the termination of this Agreement, within three (3) business days after an Acquisition Transaction is consummated with the Third Party making such termination, Takeover Proposal; then the Company shall pay or cause to Parent a fee of $1,120,000 in cash. Such payment shall be made, in the case of a fee to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h7.3(a)(i), then, within two business days following the termination of this Agreement by Parent or concurrently with such the termination of this Agreement by the Company as set forth in Section 9.1(h) (Company, or, if later, promptly following in the provision by Parent case of wire transfer instructions a fee to be paid pursuant to Section 9.2(b)(iv)7.3(a)(ii) or Section 7.3(a)(iii), within two business days following the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i)consummation of such Acquisition Transaction, (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account to be designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case .
(b) For purposes of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment an "Acquisition Transaction" means any proposal or offer from any Person (other than Parent and its Affiliates) providing for any: (A) acquisition (whether in a single transaction or a series of related transactions) of assets of the Termination Fee Company and its Subsidiaries having a fair market value equal to 50% or more of the consolidated assets of the Company and its Subsidiaries, taken as a whole; (B) direct or indirect acquisition (whether in a single transaction or a series of related transactions) of 50% or more of the voting power of the Company; (C) tender offer or exchange offer that if consummated would result in any Person beneficially owning 50% or more of the voting power of the Company; or (D) merger, consolidation, share exchange, business combination, recapitalization or similar transaction involving the Company or involving any Subsidiary (or Subsidiaries) (other than: (1) mergers, consolidations, business combinations or similar transactions involving solely the Company and/or one or more Subsidiaries of the Company; and (2) mergers, consolidations, business combinations or similar transactions that if consummated would result in a Person beneficially owning not more than 50% of any class of equity securities of the Company or any of its Subsidiaries); in each case, other than the Transactions.
(c) The Company and Parent acknowledge that the fee and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, Parent and the Company would not enter into this Agreement. Accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 7.3, 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 7.3, the Company shall constitute liquidated damagespay to Parent the reasonable costs and expenses of Parent (including reasonable attorneys' fees and expenses) in connection with such suit, and from and after together with interest on the amounts set forth in this Section 7.3 at the prime rate of Citibank, N.A. in effect on the date such termination as payment was required to be made. Payment of the fees described in this Section 9.2(b) 7.3 shall not be in lieu of damages incurred in the Company shall have no further liability or obligations event of any kind in connection with breach of this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionAgreement.
Appears in 1 contract
Sources: Merger Agreement (Aerogen Inc)
Termination Fee. (a) If this Agreement is terminated: (a) by Parent pursuant to Section 8.1(e); (b) pursuant to Section 8.1(d), and (i) If prior to such termination a bona fide Acquisition Proposal (Adefined for the purposes of this clause (b) Parent by replacing all the references to 20% in the definition of the term Acquisition Transaction with 50%) had been publicly announced or disclosed and not withdrawn, and (ii) within nine months following such termination, the Company terminates this Agreement enters into a binding definitive agreement providing for the implementation of an Acquisition Transaction with any Person that is subsequently consummated, or consummates an Acquisition Transaction with any Person; (c) pursuant to Section 9.1(c8.1(b), Section 9.1(dand (i) prior to such termination a bona fide Acquisition Proposal (defined for the purposes of this clause (c) by replacing all the references to 20% in the definition of the term Acquisition Transaction with 50%) had been made known to the Company or Section 9.1(g)otherwise had been publicly announced or disclosed and not withdrawn, (Bii) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 Sections 6 and Section 8.3 (other than Section 8.3(c)) shall have 7 had been satisfied or waivedwaived as of such termination date, other than, (A) the conditions set forth in Sections 6.3 and 7.3 due to a failure by the Company to submit the Required Company Stockholder Vote to the stockholders of the Company at the Company Stockholder Meeting by the Outside Date, and (CB) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) those that by their nature are only satisfied as of the definition of such termClosing; and (iii) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of within nine months following such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a binding definitive agreement within twelve providing for the implementation of an Acquisition Transaction with any Person or consummates an Acquisition Transaction with any Person, or (12d) months of such termination by Company pursuant to effect any Acquisition ProposalSection 8.1(h), then on the date of such consummation or such entry into a definitive agreement, the Company shall pay Parent a fee equal to $19,100,000, net of $15,496,000 any Parent Expenses previously paid. Such fee shall be paid in cash immediately available funds and shall be due and payable (I) in its entirety two business days after the “Termination Fee”date of termination in the event of a termination by Parent pursuant to Section 8.1(e). Solely for purposes , (II) in its entirety simultaneously with the entry by the Company into a binding definitive agreement with respect to, or the consummation of, the Acquisition Transaction referenced in clause (b) above, as applicable, in the event of a termination pursuant to Section 8.1(d), provided such Acquisition Transaction is with the Person who made the Acquisition Proposal publicly announced at the time of such termination, (III) in its entirety simultaneously with the entry by the Company into a binding definitive agreement with respect to, or the consummation of, the Acquisition Transaction referenced in clause (c) above, as applicable, in the event of a termination pursuant to Section 8.1(b), provided such Acquisition Transaction is with the Person who made the Acquisition Proposal publicly announced at the time of such termination, (IV) one-half upon the entry by the Company into a binding definitive agreement with respect to, and such portion of the fee not previously paid simultaneously with, and conditioned upon, the consummation of, any Acquisition Transaction with any Person referenced in clause (b) above in the event of a termination pursuant to Section 8.1(d) or in clause (c) above in the event of a termination pursuant to Section 8.1(b), or (V) simultaneously with the termination of this Agreement in the event of a termination by the Company pursuant to Section 9.2(b)(i8.1(h), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(iib) If Parent terminates In the event that this Agreement pursuant is terminated by Parent under the provisions referred to in clause (c) of Section 9.1(e8.4(a) (or is terminated under another provision of this Agreement but could have been terminated under such clause), then, within three (3) business days after such termination, then the Company shall pay or cause to be paid to Parent, as promptly as possible following receipt of an invoice from Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(hbut in any event within two business days following such receipt), thenin accordance with Parent’s written instructions, concurrently with such Parent’s actual and reasonably documented out-of-pocket fees and expenses (including fees and expenses of counsel, accountants, financial advisors, or consultants and commitment fees) actually incurred by Parent and its respective Affiliates on or prior to the termination of this Agreement by in connection with the Company as set forth in Section 9.1(h) Contemplated Transactions (or, if later, promptly following the provision by “Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)Expenses”), which amount shall not be greater than $3,000,000; provided, however, that the Company shall pay or cause to be paid to Parent existence of circumstances which could require the Termination Fee.
(iv) Any amount Fee to become subsequently payable by the Company pursuant to the preceding clauses clause (i), (iic) or (iiiof Section 8.4(a) shall be paid not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 8.4(b); and provided, further, that the payment by wire transfer the Company of immediately available funds Parent Expenses pursuant to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment this Section 8.4(b) shall not be required prior relieve the Company of any subsequent obligation to pay the designation Termination Fee pursuant to clause (c) of such account by ParentSection 8.4(a). Except .
(c) The Company acknowledges that the agreements contained in this Section 8.4 are an integral part of the case of common law fraud (Contemplated Transactions, that without these agreements Parent would not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in have entered into this Agreement, payment of and that any amounts payable pursuant to this Section 8.4 do not constitute a penalty. If the Termination Fee shall constitute liquidated damages, and from and after such termination as described Company fails to pay Parent any amounts due to Parent pursuant to this Section 8.4 within the time periods specified in this Section 9.2(b) 8.4, the Company shall have no further liability or obligations pay interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b)actual payment. For the avoidance of doubt, in no event shall the liability of the Company be obligated pursuant to pay this Section 8.4 exceed $19,100,000 plus the Termination Fee on more than one occasionamount of any interest accrued pursuant to this Section 8.4(c).
Appears in 1 contract
Sources: Merger Agreement (Connetics Corp)
Termination Fee. (i) If this Agreement is terminated by Emerson pursuant to Section 11.01(c)(i) or Section 11.01(c)(iii) (in each case, without the Aspen Stockholder Approval having been previously obtained), then Aspen shall pay to Emerson, within one Business Day after such termination, in immediately available funds $325,000,000 (the “Termination Fee”) to an account specified by Emerson upon such termination.
(ii) If (A) Parent or the Company terminates this Agreement is terminated by Emerson or Aspen pursuant to Section 9.1(c11.01(b)(i) (but, for clarity, only if at such time Emerson would not be prohibited from terminating this Agreement by the proviso in Section 11.01(b)(i), Section 9.1(d) or Section 9.1(g11.01(b)(iii) or by Emerson pursuant to Section 11.01(c)(ii) (but, for clarity, only if at such time Emerson would not be prohibited from terminating this Agreement by the proviso in Section 11.01(c)(ii)) (in each case, without the Aspen Stockholder Approval having been obtained or, if such termination is after the Aspen Stockholder Approval has been obtained, as a result of a willful and material breach by Aspen), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to such termination, an Acquisition Proposal shall have been publicly announced or otherwise been communicated to the Board of Directors of Aspen or its stockholders and (C) within 12 months following the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters Aspen shall have entered into a definitive agreement within twelve with respect to or recommended to its stockholders an Acquisition Proposal or an Acquisition Proposal shall have been consummated (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 9.2(b)(iclause (C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references each reference to “15%” or “85%” therein in the definition of Acquisition Proposal shall be deemed to be references a reference to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company then Aspen shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), thenEmerson in immediately available funds, concurrently with such termination the occurrence of this Agreement by the Company as set forth applicable event described in Section 9.1(h) clause (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)C), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds Fee to an account designated in writing specified by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of Emerson upon such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasiontermination.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Merger (Aspen Technology Inc /De/)
Termination Fee. (i) If In the event that (A) this Agreement is terminated by (1) Parent pursuant to Section 8.1(d) or (2) the Company pursuant to Section 8.1(e) or (B)(1) prior to the Acceptance Time, a Competing Proposal shall have been made directly to the stockholders of the Company generally or shall have otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional and whether or not withdrawn) to make a Competing Proposal, (2) thereafter this Agreement is terminated by either Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d8.1(c) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C3) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company on or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or twelve (y12) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date month anniversary of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination with respect to effect any Acquisition Proposala Competing Proposal or the transactions contemplated thereby are actually consummated, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay to Parent a fee of Thirty Five Million One Hundred Fifty Thousand Dollars ($15,496,000 in cash 35,150,000.00) (the “Termination Fee”) on the first business day following (x) in the case of a payment required by clause (A) above, the date of termination of this Agreement and (y) in the case of a payment required by clause (B) above, the date of the first to occur of the events referred to in clause (B)(3) (unless the events referred to in clause (B)(3) occurred prior to any termination referred to in clause (B)(2), in which case, the Termination Fee shall be payable on the date of such termination) and, in each case, upon the payment of the Termination Fee, the Company shall have no further liability with respect to this Agreement or the Transactions contemplated hereby to Parent or Purchaser. Solely for Table of Contents
(ii) For purposes of this Section 9.2(b)(i)8.2(b)(i)(B)(3) only, the term “Acquisition Competing Proposal” shall have the meaning assigned to such term in Annex ISection 9.5, except that all references the reference to “1520%” or in the definition of “85%Competing Proposal” therein shall be deemed to be references a reference to “5040%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Johnson & Johnson)
Termination Fee. (a) The Company shall pay to Parent the Company Termination Fee if:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c)8.1(d)(ii) (provided that, if either the Company or Parent terminates this Agreement pursuant to Section 9.1(d8.1(b)(i) or Section 9.1(g8.1(b)(iii) at any time after Parent would have been permitted to terminate this agreement pursuant to Section 8.1(d)(ii), this Agreement shall be deemed terminated pursuant to Section 8.1(d)(ii) for purposes of this Section 8.3(a)(i));
(ii) (A) this Agreement is terminated pursuant to Section 8.1(d)(i), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of hereof, but prior to the date this Agreement is terminated, a third party has made and has not withdrawn prior to the date of such termination or (y) termination, a bona fide Company Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made that has become known to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, public and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or termination, the Company enters into a definitive agreement within twelve Contract to consummate any Company Acquisition Proposal or any Company Acquisition Proposal is consummated (12) months of such termination to effect any Acquisition Proposalprovided that, then on for the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i)8.3(a)(ii)(C) only, the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Annex Iterm, except that all references to “15twenty percent (20%” or “85%)” therein shall be deemed to be references to “fifty percent (50%)”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.; or
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h8.1(c)(iii), then, concurrently with such termination of .
(b) Parent shall pay to the Company the Parent Termination Fee if:
(i) the Company terminates this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv8.1(c)(ii) (provided that, if either the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(ii) at any time after the Company would have been permitted to terminate this agreement pursuant to Section 8.1(c)(ii), this Agreement shall be deemed terminated pursuant to Section 8.1(c)(ii) for purposes of this Section 8.3(b)(i));
(ii) (A) this Agreement is terminated pursuant to Section 8.1(c)(i), (B) after the date hereof, but prior to the date this Agreement is terminated, a third party has made and has not withdrawn prior to the date of termination, a Parent Acquisition Proposal that has become known to the public and (C) within twelve (12) months of such termination, Parent enters into a definitive Contract to consummate any Parent Acquisition Proposal or any Parent Acquisition Proposal is consummated (provided that, for the purposes of Section 8.3(b)(ii)(C) only, the Company term “Parent Acquisition Proposal” shall pay or cause have the meaning assigned to such term, except that all references to “twenty percent (20%)” therein shall be deemed to be paid references to “fifty percent (50%)”); or
(iii) Parent the Termination Feeterminates this Agreement pursuant to Section 8.1(d)(iii).
(ivc) Any amount payable by the Company pursuant to the preceding clauses (i), (iiTermination Fee or Parent Termination Fee due under Section 8.3(a) or (iiiSection 8.3(b) shall be paid by wire transfer of immediately available same-day funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except i) in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberateSection 8.3(a)(i) or a Willful Breach, notwithstanding anything else Section 8.3(b)(i) as promptly as practicable (and in no event more than five (5) Business Days) after the respective termination is delivered to the contrary party obligated to make the payment, (ii) in the case of Section 8.3(a)(ii) or Section 8.3(b)(ii), on the date of the first to occur of the events referred to in Section 8.3(a)(ii)(C) or Section 8.3(b)(ii)(C), as applicable, and (iii) in the case of Section 8.3(a)(iii) or Section 8.3(b)(iii) at or prior to the termination of this Agreement, payment of .
(d) Parent and the Termination Fee shall constitute liquidated damages, Company hereby acknowledge and from and after such termination as described agree that the agreements contained in this Section 9.2(b) 8.3 are an integral part of the Transactions, and that, without these agreements, Parent and the Company would not have entered into this Agreement and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. Accordingly, if either party fails promptly to pay the amount due pursuant to Section 8.3(a) or Section 8.3(b), as applicable, and, in order to obtain such payment, the other party commences an Action that results in an Order in its favor for such payment, the Company or Parent, as applicable, shall have no further liability or obligations of any kind pay to the other party such payment and its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with this Agreement or the termination contemplated hereby other than as provided under such Action. Any amount not paid when due pursuant to this Section 9.2(b). For 8.3 shall bear interest, accruing from its due date, at an interest rate per annum equal to two (2) percentage points in excess of the avoidance prime rate in the United States quoted by The Wall Street Journal in effect on the date such payment was required to be made.
(e) Each of doubt, the parties agrees and understands that (x) in no event shall the Company other party be obligated required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasionoccasion and (y) if Parent receives the Company Termination Fee from the Company pursuant to this Section 8.3, or if the Company receives the Parent Termination Fee from Parent pursuant to this Section 8.3 (in each case, together with any applicable interest accrued thereon and the receiving party’s costs and expenses in connection with any Action as set forth in Section 8.3(d)), 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 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 partners, stockholders, managers, members, Affiliates or Representatives shall have any further liability or obligation, in each case relating to or arising out of this Agreement or the Transactions.
Appears in 1 contract
Sources: Merger Agreement (Madison Square Garden Entertainment Corp.)
Termination Fee. (ia) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) 8.03 or Section 9.1(g), (B) in the case of termination by Buyer pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement8.04, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i)to Buyer, the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent Buyer, the amount of $10,000,000 (the "INITIAL TERMINATION FEE") within five (5) Business Days following such termination and, notwithstanding anything herein if (i) at the time of such termination there shall have been publicly announced or communicated to the contraryCompany Board a Superior Acquisition Proposal and (ii) within twelve (12) months after such termination, payment the Company enters into a definitive agreement with respect to such Superior Acquisition Proposal, then the Company shall not be required prior pay to Buyer, by wire transfer of immediately available funds to an account designated by Buyer, the designation amount of $5,000,000 (the "SUBSEQUENT TERMINATION FEE", together with the Initial Termination Fee, referred to as the "TERMINATION FEE") within the next five (5) Business Days following such account by Parent). Except in the case of common law fraud execution.
(not including in any event any constructive fraud or any fraud that is not intentional or deliberateb) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, The payment of the Termination Fee shall constitute serve as full liquidated damagesdamages hereunder, and from and after such termination as described in this Section 9.2(b) Buyer hereby waives all claims against the Company and the Subsidiaries hereunder in respect of the circumstances requiring such payment.
(c) Each party shall have no further liability or obligations of any kind bear its own expenses in connection with this Agreement or and the termination transactions contemplated hereby other than as provided under hereby.
(d) The Parties acknowledge that the agreements contained in this Section 9.2(b)8.06 are an integral part of the Merger, and that, without these agreements, the Parties would not enter into this Agreement. For the avoidance of doubt, in no event shall If the Company be obligated fails to promptly pay to Buyer the Termination Fee, the Company shall pay the Termination Fee on more than one occasioncosts and expenses (including reasonable legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment thereof.
Appears in 1 contract
Sources: Merger Agreement (Wackenhut Corp)
Termination Fee. (i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of 7.1(a)(iii) or if the Parent terminates this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv7.1(a)(ii) or 7.1(a)(iv)), prior to and as a condition to the effectiveness of such termination, the Company shall pay or cause to be paid to Parent a termination fee of $30 million (the “Termination Fee”).
(ivii) Any amount payable If (A) an Acquisition Proposal shall have been made to the Company or directly to its stockholders or shall have otherwise become publicly known or announced (whether or not conditional) and (B) the Agreement is thereafter terminated (I) by Parent pursuant to Section 7.1(a)(i)(A), or (II) by the Parent or the Company pursuant to the preceding clauses (iSection 7.1(a)(i)(B), (ii) or (iiiIII) by the Company or the Parent pursuant to Section 7.1(a)(i)(C) and (C) concurrently or within twelve (12) months after such termination, the Company enters into a definitive Contract to consummate or consummates transactions contemplated by any Acquisition Proposal (regardless of whether made before or after termination of this Agreement), then the Company shall be paid pay Parent the Termination Fee by wire transfer of immediately available same-day funds on the earlier of the date the Company enters into such Contract or consummates such Takeover Proposal. For purposes of this Section 7.2(b)(ii), all references to an account designated “twenty percent (20%)” in writing by Parent the definitive of Acquisition Transaction shall be deemed to refer to fifty percent (and, notwithstanding anything herein 50%).
(iii) If the event that (A) the Company terminates this Agreement pursuant to Section 7.1(a)(i)(B) and (B) at the time of such termination all conditions to the contraryconsummation of the Offer are satisfied or waived except for the conditions set forth in Paragraphs (b), payment shall not be required prior to the designation (c) or (d) of such account by Parent). Except Annex I and (C)(I) in the case of common law fraud such Paragraph (b) the reason any waiting period has not including expired relates solely to the Company’s EVH Business or (II) in any event any constructive fraud or any fraud that is not intentional or deliberatethe case of Paragraphs (c) or a Willful Breach(d) the suit, notwithstanding anything else action, proceeding statute, rule, regulation, judgment, order or injunction is related solely to the contrary in this AgreementCompany’s EVH Business, payment the Parent shall pay to the Company a termination fee of $30,000,000 (the “HSR Termination Fee shall constitute liquidated damagesFee”) provided, and from and after such termination as described in this Section 9.2(b) however, the Company shall have no further liability not be entitled to the HSR Termination Fee if, prior to or obligations at the time of any kind in connection with the termination, Parent is entitled to terminate this Agreement for any reason (excluding any cure or notice provisions) or the termination contemplated hereby other than as provided under this Company is in breach of its obligations set forth in Section 9.2(b). For 5.6 with respect to the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionHSR Act.
Appears in 1 contract
Sources: Merger Agreement (Datascope Corp)
Termination Fee. (i) If Notwithstanding anything to the contrary in this Agreement, if (A) Parent or the Company terminates shall have terminated this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g7.1(g), (B) in the case of termination Parent shall have terminated this Agreement pursuant to Section 9.1(d7.1(h), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge1) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date termination of such terminationthis Agreement, an Acquisition Proposal shall have been made known to the Company or any of its Subsidiaries or publicly disclosed (in each case, whether or not conditional and whether or not withdrawn), (2) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(b), Section 7.1(d) or Section 7.1(f) and (D3) any Acquisition Proposal is consummated concurrently with or within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay have entered into a definitive agreement providing for, or cause to be paid to Parent completed the Termination Fee.
implementation of, an Acquisition Proposal, then in the case of each of clauses (iii) If the Company terminates this Agreement pursuant to Section 9.1(hA), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h(B) and (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv))C) above, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i)pay, (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent, a fee of $75,000,000 in cash (the “Termination Fee”). Except , such payment to be made concurrently with termination in the case of common law fraud clause (not including in any event any constructive fraud or any fraud that is not intentional or deliberateA) or a Willful Breachabove, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and within three (3) Business Days after such termination as described in the case of clause (B) above if terminated pursuant to Section 7.1(b) or within two (2) Business Days of the Company Meeting if terminated pursuant to or Section 7.1(d), or concurrently with the completed implementation of the Acquisition Proposal, in the case of clause (C) above; it being understood that for all purposes of clause (C) above and the application of this Section 9.2(b) 7.3(a), all references to 20% in the Company definition of “Acquisition Proposal” shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other be deemed to be references to “more than as provided under this Section 9.2(b). For the avoidance of doubt, 50%” and in no event shall the Company be obligated required to pay the Termination Fee on more than one (1) occasion. Other than as specified in Section 7.2(a), upon the payment by the Company of the Termination Fee as and when required by this Section 7.3(a), none of the current, former, or future Company Parties shall have any further liability with respect to this Agreement or the Transactions to any Parent Party. If any applicable law (as determined in the good faith discretion of the Company) requires deduction or withholding of any Tax from any payment of the Termination Fee, then the Company shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Body in accordance with applicable law the sum payable by the Company pursuant to this Section 7.3(a)(i) shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 7.3(a)(i)) Parent receives an amount equal to the Termination Fee.
Appears in 1 contract
Termination Fee. Any provision in this Agreement to the contrary notwithstanding,
(a) In the event that:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement Agreement, any Alternative Proposal (substituting fifty percent (50%) for the twenty percent (20%) threshold set forth in the definition of “Alternative Proposal”) (a “Qualifying Transaction”) is publicly proposed or publicly disclosed prior to, and not withdrawn or expressly rejected by at the time of, the Company prior to the date of such terminationMeeting, and (DB) any Acquisition Proposal this Agreement is consummated within twelve (12) months of such termination validly terminated by Parent or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e7.1(b), then, 7.1(d) or 7.1(f) and (C) concurrently with or within three nine (39) business days months after such termination, the Company shall have entered into a definitive agreement with respect to any Qualifying Transaction or consummates the transactions contemplated by a Qualifying Transaction (whether the Qualifying Transaction made prior to the Company Meeting or a different Qualifying Transaction);
(ii) Parent shall have validly terminated this Agreement pursuant to Section 7.1(g); or
(iii) the Company shall have validly terminated this Agreement pursuant to Section 7.1(h), then, in any such event, the Company shall pay to Parent a fee of $37,800,000 in cash (the “Company 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 (i) above, upon consummation of the Qualifying Transaction, in the case of clause (ii) above, within three (3) Business Days of such termination or, in the case of clause (iii) above, substantially concurrent with the termination by the Company pursuant to Section 7.1(h); it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. Following receipt by Parent of the Company Termination Fee in accordance with this Section 7.3, the Company shall have no further liability with respect to this Agreement or the transactions contemplated hereby to Parent or Merger Sub. Parent shall have the right to assign its right to receive the Company Termination Fee to one or more Persons in its sole discretion.
(b) In the event that the Company shall have validly terminated this Agreement pursuant to Section 7.1(e) (at any time at which Parent was not entitled to terminate this Agreement pursuant to Section 7.1(f) or (g)) or 7.1(i), Parent shall cause to be paid to the Company a reverse termination fee of $75,600,000 in cash (the “Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h”), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available same day funds to an account one or more accounts designated by the Company, such payment to be made no later than three (3) Business Days of such termination; it being understood that in writing no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Following receipt by the Company of the Parent (andTermination Fee in accordance with this Section 7.3, notwithstanding anything herein Parent shall have no further liability with respect to this Agreement or the transactions contemplated hereby to the contraryCompany.
(c) If either party fails to timely pay an amount due pursuant to this Section 7.3, payment the defaulting party shall not be required prior to pay the designation of non-defaulting party interest on such account by Parent). Except amount at the prime rate as published in the case of common law fraud Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received.
(not including in any event any constructive fraud or any fraud that is not intentional or deliberated) or a Willful Breach, notwithstanding Notwithstanding anything else to the contrary in this Agreement, in the event Parent and/or Merger Sub fail to effect the Closing (including due to the fact that the Debt Financing is not available to Parent) or otherwise breach this Agreement or fail to perform hereunder, then, except for an order of specific performance as and only to the extent expressly permitted by Section 8.5, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) (other than in connection with fraud for which all applicable legal and equitable remedies shall be available to the Company) against any Parent Related Party in respect of this Agreement, any contract or agreement executed in connection herewith (including the Debt Commitment Letter, the Equity Commitment Letters, the Rollover Contribution Agreements and the Funding Agreement) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VII and collect, if due, (i) the Parent Termination Fee and (ii) any interest payable pursuant to Section 7.3(c), and upon payment of such amounts in accordance with this Section 7.3, except in connection with an order of specific performance as and only to the Termination Fee extent expressly permitted by Section 8.5, (A) no Parent Related Party shall constitute liquidated damageshave any further liability or obligation relating to or arising out of this Agreement, any contract or agreement executed in connection herewith (including the Debt Commitment Letter, the Equity Commitment Letters, the Rollover Contribution Agreements and the Funding Agreement) or any of the transactions contemplated hereby or thereby, (B) no Company Related Party shall be entitled to bring or maintain any Action against any Parent Related Party arising out of or in connection with this Agreement, any contract or agreement executed in connection herewith (including the Debt Commitment Letter, the Equity Commitment Letters, the Rollover Contribution Agreements and the Funding Agreement) or any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination, and from and after such termination as described in this Section 9.2(b(C) the Company shall have no further liability or obligations of use its commercially reasonable efforts to cause any kind legal proceedings pending in connection with this Agreement Agreement, any contract or agreement executed in connection herewith (including the termination Debt Commitment Letter, the Equity Commitment Letters, the Rollover Contribution Agreements and the Funding Agreement) or any of the transactions contemplated hereby other than as provided under this Section 9.2(b)or thereby, to the extent maintained by any Company Related Party against any Parent Related Party to be dismissed with prejudice promptly following the payment of any such amounts. For the avoidance of doubt, (x) the amounts the Company is entitled to collect, if due, that are specified in clauses (i) and (ii) of this Section 7.3(d), together with an amount not to exceed $500,000 payable to the Company, its Subsidiaries and their respective Representatives pursuant to the last sentence of Section 5.11(b), are intended to serve as a cap on the maximum aggregate liability of Parent, Merger Sub and any Parent Related Party under this Agreement in the event Parent and Merger fail to effect the Closing in accordance with Section 1.2 of this Agreement or otherwise breach this Agreement or fail to perform hereunder and under no event circumstances shall the Company be obligated entitled to pay collect the Parent Termination Fee on more than one occasionoccasion and (y) under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance of the obligation to close contemplated by Section 8.5 and any money damages, including all or any portion of the Parent Termination Fee.
Appears in 1 contract
Sources: Merger Agreement (Ancestry.com Inc.)
Termination Fee. (a) In the event that:
(i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 9.1(c), 7.01(b)(i) or by Parent pursuant to Section 9.1(d7.01(c)(i) or Section 9.1(g7.01(c)(iii); provided, that (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xA) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made made, proposed or otherwise communicated to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (yB) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date this Agreement is terminated, the Company enters into a definitive agreement within twelve with respect to the same Acquisition Proposal referred to in clause (12A) months of and such termination to effect any Acquisition ProposalProposal is subsequently consummated (even if after such twelve-month period); provided, then on the date of such consummation or such entry into a definitive agreementthat, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (A) and (B) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1525%” or “85%” therein in the definition of Acquisition Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e), then, within three 7.01(c)(ii) or (3B) business days after such termination, by the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h7.01(d)(ii), ; then, concurrently with in any such termination event under clause (i) or (ii) of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.03(a), the Company shall pay or cause to be paid the Company Termination Fee to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid its designee by wire transfer of immediately available same day funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 7.03(a)(ii)(A), within two (not including 2) Business Days after such termination, (y) in any event any constructive fraud the case of Section 7.03(a)(ii)(B), simultaneously with such termination or any fraud that is not intentional or deliberate(z) or a Willful Breachin the case of Section 7.03(a)(i), notwithstanding anything else to within two (2) Business Days after the contrary in this Agreement, payment consummation of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Acquisition Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Momentive Performance Materials Inc.)
Termination Fee. (a) Notwithstanding any provision in this Agreement to the contrary, if (i) If (A) prior to the termination of this Agreement, any Alternative Proposal (substituting 20% for the 15% thresholds set forth in the definition of “Alternative Proposal;” provided, that any proposals for the acquisition of any of the Proposed Divestitures shall not be included in the calculation of such 20% threshold with respect to assets of the Company and its Subsidiaries) is publicly proposed or publicly disclosed prior to, and not withdrawn at the time of, the Company Meeting, (B) this Agreement is terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c7.1(d) and (C) concurrently with or within nine (9) months after such termination, a transaction the proposal of which would constitute an Alternative Proposal (substituting 50% for the 15% thresholds set forth in the definition of “Alternative Proposal”) (a “Qualifying Transaction”) shall have occurred or any definitive agreement providing for a Qualifying Transaction shall have been entered into or (ii) this Agreement is terminated by the Company pursuant to Section 7.1(g) or by Parent pursuant to Section 7.1(h), Section 9.1(d) or Section 9.1(g)then in any such event the Company shall pay to Parent a fee of $171,900,000 in cash, (B) such payment to be made, in the case of termination by the Company pursuant to Section 9.1(d7.1(g), all concurrently with such termination, or in the case of the conditions set forth in termination by Parent pursuant to Section 8.1 and Section 8.3 7.1(h), two (other than Section 8.3(c)2) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed business days after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, or, otherwise, upon the earlier of (i) consummation of such Qualifying Transaction and (Dii) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters entry into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposalproviding for a Qualifying Transaction, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except it being understood that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated required to pay the Termination Fee fee referred to in this Section 7.2(a) on more than one occasion.
(b) The Company acknowledges that the agreements contained in this Section 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 Company fails to pay in a timely manner the amounts due pursuant to this Section 7.2, and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company, the Company shall pay to Parent Parent’s reasonable 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 7.2 at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.2 shall not be in lieu of damages incurred in the event of an intentional breach of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (McClatchy Co)
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) If this Agreement is terminated by Acquiror pursuant to Section 8.2(c)(i) (AChange in recommendation) Parent or Section 8.2(c)(vi) (Superior Proposal Notice) in which case the termination fee shall be paid on the first Business Day following such termination;
(ii) this Agreement is terminated by Company terminates 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 9.1(c8.2(c)(iii), Section 9.1(d8.2(c)(iv), Section 8.2(c)(v) or Section 9.1(g8.2(b)(iii)), (B) but only if, in the case of termination pursuant to this Section 9.1(d8.3(a)(iii), all prior to the termination of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waivedthis Agreement, and (C) (x) a bona fide an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to Company, or the Company or publicly disclosed after the date of this Agreement and not withdrawn prior intention to the date of such termination or (y) a bona fide make an Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made with respect to the Company or shall have been publicly disclosed announced by any Person (other than Acquiror or any of its affiliates), and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to if within nine months following the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.:
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If this Agreement is terminated (A) by Parent pursuant to Section 6.1(d) or Section 6.1(f), (B) by Parent pursuant to Section 6.1(i) that arises out of a Willful Breach of Section 4.2, or (C) by the Company pursuant to Section 6.1(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 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 terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d6.1(b) (but only if the Company Stockholder Approval has not yet been obtained) or Section 9.1(g6.1(k), (y) by Parent pursuant to Section 6.1(g) or Section 6.1(i), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide any Alternative Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have has been made known to the Company or publicly disclosed 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 and not withdrawn but prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date this Agreement is terminated, the Company enters into a definitive agreement within twelve with respect to any Alternative Acquisition Proposal or an Alternative Acquisition Proposal is consummated (12) months of such termination to effect any Acquisition Proposalprovided, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 9.2(b)(iclause (C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or “85%” therein in the definition of Alternative Acquisition Proposal shall be deemed to be references to “50%”), and then concurrently with the occurrence of the applicable event in clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)C), the Company shall pay (or cause to be paid) to Parent the Company Termination Fee (or, 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 the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (iSection 6.3(a)(i)), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (andtransfer, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud it being understood that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated required to pay (or cause to be paid) the Company Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If this Agreement is terminated pursuant to (Ax) Parent or Section 8.1(b)(i), (y) Section 8.1(b)(iii) (with respect to clauses (x) and (y), so long as the Company terminates did not concurrently have the right to terminate this Agreement pursuant to Section 9.1(c8.1(c)(ii)), or (z) Section 9.1(d) or Section 9.1(g8.1(d)(ii), and (A) at any time after the date of this Agreement and prior to the Company Meeting an Alternative Proposal shall have been publicly announced or otherwise been publicly communicated to the Company’s stockholders and (B) within twelve months following the date of such termination, an Alternative Proposal shall have been consummated (provided that for purposes of this clause (B), each reference to “20%” in the definition of Alternative Proposal shall be deemed to be a reference to “50%”);
(ii) the Company shall have terminated this Agreement pursuant to Section 8.1(c)(i); or
(iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(i); then, the Company shall, (A) in the case of clause (i) above, no later than two (2) Business Days after the date of the occurrence of the applicable event described in clause (B) of Section 8.3(a)(i) pay Parent (or one or more of its designees) the Company Termination Fee; (B) in the case of termination clause (ii) above, prior to or on the day of such termination, and as a condition to such termination, pay Parent (or one or more of its designees) the Company Termination Fee; and (C) in the case of clause (iii) above, within two (2) Business Days of such termination, pay Parent (or one or more of its designees) the Company Termination Fee, in each case by wire transfer of same day funds to one or more accounts designated by Parent.
(b) In the event that:
(i) the Company shall have terminated this Agreement pursuant to Section 9.1(d8.1(c)(ii); or
(ii) the Company shall have terminated this Agreement pursuant to Section 8.1(c)(iii) then, Parent shall, within two (2) Business Days of such termination, pay the Company the Reverse Termination Fee, by wire transfer of same day funds to one or more accounts designated by the Company.
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to the Company’s right set forth in the second to last sentence of this Section 8.3(c) and Section 9.5, the Company’s right to receive payment of the Reverse Termination Fee shall constitute the sole and exclusive remedy of the Company and its Subsidiaries and any other Company Related Parties against Parent, Merger Sub, the Guarantors, the Financing Sources or any of their respective Affiliates or any direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, representatives, or assignees of any of the foregoing (collectively, the “Parent Related Parties”) for all losses and damages suffered in connection with this Agreement and the transactions contemplated hereby, including as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, the Equity Commitment Letter, the Debt Commitment Letters or in respect of any other document or theory of law or equity or in respect of oral representations made or alleged to be made in connection herewith or therewith, whether in equity or at law, in contract, in tort or otherwise it being understood and the Company agrees that the maximum aggregate liability of the Parent Related Parties shall be limited to an amount equal to the amount of the Reverse Termination Fee, and in no event shall the Company seek or be entitled to recover any money damages, recovery or judgment in connection with this Agreement and the transactions contemplated hereby in excess of the Reverse Termination Fee, and in no event shall the Company seek or be entitled to multiple, special or punitive damages against any Parent Related Party in excess of the Reverse Termination Fee (except that Parent shall also be obligated with respect to the terms of the Confidentiality Agreement and the provisions of Section 6.3(b), Section 8.3(d) and Section 9.2 and for any of its expense reimbursement and indemnification obligations contained in Section 6.11 and Section 6.18 and the Guarantors shall also be obligated with respect to the terms and conditions of the Guaranty). Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.5, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a), in circumstances where the Company Termination Fee is owed and paid in full pursuant to Section 8.3(a), shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective, direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, representatives, Affiliates or assignees (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of any breach or failure to perform hereunder giving rise to such termination, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby with respect to such breach or failure to perform (except that the Company shall also be obligated with respect to the terms of Section 8.3(d) and Section 9.2). Notwithstanding the foregoing, it is explicitly agreed that the Company shall be entitled to obtain an injunction, or other appropriate form of specific performance or equitable relief, to cause Parent and Merger Sub to cause, or for the Company to directly cause, in accordance with its third party beneficiary rights under the Equity Commitment Letter, the Equity Financing to be funded on the terms and subject to the conditions set forth in the Equity Commitment Letter and this Agreement if, and only if, each of the following conditions has been satisfied: (i) all conditions in Section 8.1 7.1 and Section 8.3 7.3 (other than Section 8.3(c)those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which shall be capable of being satisfied at the Closing) shall have been satisfied or waivedat the time when the Closing would have occurred but for the failure of the Equity Financing to be funded, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such eventremain satisfied, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement financing provided for by the Company as set forth in Section 9.1(h) Debt Commitment Letters (or, if laterAlternative Financing is being used in accordance with Section 6.11, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv))the commitments with respect thereto) has been funded in accordance with its terms or will be funded at the Closing in accordance with its terms if the Equity Financing is funded at the Closing, (iii) with respect to any funding of the Equity Financing to occur at the Closing, the Company shall pay or cause to be paid to Parent has irrevocably confirmed that if specific performance is granted and the Termination Fee.
Equity Financing and Debt Financing are funded, then the Closing will occur and (iv) Any amount payable by Parent fails to consummate the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated Closing in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this accordance with Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b)2.2. For the avoidance of doubt, while the Company may pursue a grant of specific performance of the type provided in the preceding sentence and the payment of the Reverse Termination Fee under Section 8.3(b), under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance and any monetary damages, including any monetary damages in lieu of specific performance and all or any portion of the Reverse Termination Fee.
(d) Notwithstanding anything to the contrary set forth in this Agreement, the parties hereto agree that in no event shall the Company or Parent be obligated required to pay the Company Termination Fee or the Reverse Termination Fee, as the case may be, on more than one occasion. Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) each of the Company Termination Fee and the Reverse Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties would not enter into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying party shall pay the other party its costs and expenses in connection with such suit, together with interest on such amount at the annual rate of five percent (5%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Belk Inc)
Termination Fee. (a) In the event that (i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) an Acquisition Proposal shall have been satisfied communicated to or waivedotherwise made known to the shareholders, and senior management or board of directors of Company, or any Person shall have publicly announced an intention (Cwhether or not conditional) (x) a bona fide to make an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the involving Company or publicly disclosed after the date of this Agreement, (ii) thereafter this Agreement is terminated (A) by Parent or Company pursuant to Section 8.1(b) (if the Common Shareholder Approval has not theretofore been obtained) or (B) by Parent pursuant to Section 8.1(e) and not withdrawn (iii) prior to the date that is twelve (12) months after the date of such termination or Company consummates an Alternative Transaction (y) a bona fide Acquisition Proposal described for purposes of this Section 8.3, substituting in clause (iii)(x) of the definition of such term 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 have been made to on the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above earlier of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal an Alternative Transaction is consummated within twelve (12) months of or any such termination letter executed or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposalentered into, then on the date of such consummation or such entry into a definitive agreementas applicable, the Company shall pay Parent a fee of equal to $15,496,000 in cash 2,000,000 (the “Termination Fee”). Solely for purposes ) by wire transfer of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509immediately available funds.
(iib) If Parent terminates In the event that this Agreement is terminated (i) by Parent pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i8.1(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 be paid pay Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent on the date of termination.
(and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any c) In event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in is payable under this Section 9.2(b) the 8.3, Company shall have no further liability or obligations also reimburse Parent for all of any kind its out-of-pocket expenses incurred by Parent in connection with this Agreement or and the termination transactions contemplated hereby other than as provided under herein, including fees and expenses of accountants, financial advisors and attorneys, and costs and expenses otherwise allocated to Parent pursuant to Section 9.2. 55
(d) Company acknowledges that the agreements contained in this Section 9.2(b). For 8.3 are an integral part of the avoidance of doubttransactions contemplated by this Agreement, in no event shall the and that, without these agreements, Parent would not enter into this Agreement; accordingly, if Company be obligated fails promptly to pay the Termination Fee amount due pursuant to this Section 8.3, and, in order to obtain such payment, Parent commences a suit which results in a judgment against Company for the fee set forth in this Section 8.3, Company shall pay to Parent its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on more than one occasionthe amount of the fee at a rate per annum equal to the prime rate published in The Wall Street Journal on the date that such payment was required to be made plus 300 basis points.
Appears in 1 contract
Termination Fee. (ia) If (A) Parent or In the Company terminates event of termination of this Agreement by Parent pursuant to Section 9.1(c8.1(f), Section 9.1(d) or Section 9.1(g)the Company shall pay Parent, (B) by wire transfer of same day funds, a fee in the case amount of termination pursuant to Section 9.1(d), all $17,500,000 (the “Termination Fee”) within two (2) business days of the conditions set forth in Section 8.1 and Section 8.3 date of termination.
(other than Section 8.3(c)b) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of In the definition of such term) shall have been made to the Company or publicly disclosed event that after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made known to senior management or the Board of Directors of the Company or shall have been made directly to its stockholders generally or any person shall have publicly disclosed announced (and in either such event, not withdrawn) an Acquisition Proposal with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledgeand (i) after (A) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(b)(i) or pursuant to Section 8.1(d) without the Requisite Company Vote having been obtained or (B) thereafter this Agreement is terminated by Parent pursuant to Section 8.1(e), and (ii) prior to the date of this Agreement and not withdrawn or expressly rejected by the Company prior to that is twelve (12) months after the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve or consummates a transaction with respect to an Acquisition Proposal (12) months of such termination whether or not the same Acquisition Proposal as that referred to effect any Acquisition Proposalabove), then the Company shall, on the earlier of the date it enters into such definitive agreement and the date of consummation of such consummation or such entry into a definitive agreementtransaction, pay Parent, by wire transfer of same day funds, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely ; provided, that for purposes of this Section 9.2(b)(i8.2(b), all references in the term definition of Acquisition Proposal to “Acquisition Proposaltwenty-five percent (25%)” shall have the meaning assigned to such term in Annex I, except that all references instead refer to “15%” or “85%” therein shall be deemed to be references to “fifty percent (50%).”
(c) The Company and Parent acknowledge that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed that, without these agreements, the other party would not enter into this Agreement. Accordingly, if the Company or Parent fails promptly to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pay the amount due pursuant to this Section 9.1(e)8.2, thenand, within three (3) business days after in order to obtain such terminationpayment, the Company other party commences a suit which results in a judgment against the non-paying party for the Termination Fee or any portion thereof, then such non-paying party shall pay or cause the costs and expenses of the other party (including reasonable attorneys’ fees and expenses) in connection with such suit. In addition, if the non-paying party fails to pay any amount due pursuant to this Section 8.2, then the non-paying party shall pay interest on such overdue amount (for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to Parent the Termination Fee.
“prime rate” (iiias announced by JPMorgan Chase & Co. or any successor thereto) If in effect on the Company terminates this Agreement date on which such payment was originally required to be made. The amounts payable pursuant to Section 9.1(h)Sections 8.2(a) and 8.2(b) constitute liquidated damages and not a penalty and, thenexcept in the case of fraud or willful misconduct, concurrently with shall be the sole remedy of the party receiving such payment in the event of termination of this Agreement by on the Company as set forth bases specified in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of sections under circumstances where the Termination Fee shall constitute liquidated damages, is payable and from and after such termination as described is paid in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionfull.
Appears in 1 contract
Termination Fee. (a) In the event that (i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) an Acquisition Proposal shall have been satisfied communicated to or waivedotherwise made known to the shareholders, and senior management or board of directors of Company, or any person shall have publicly announced an intention (Cwhether or not conditional) (x) a bona fide to make an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the involving Company or publicly disclosed after the date of this Agreement, (ii) thereafter this Agreement is terminated (A) by Parent or Company pursuant to Section 8.1(b) (if the Requisite Shareholder Approval has not theretofore been obtained) or (B) by Parent pursuant to Section 8.1(e) and not withdrawn (iii) prior to the date that is twelve (12) months after the date of such termination or Company consummates an Alternative Transaction (y) a bona fide Acquisition Proposal described for purposes of this Section 8.3, substituting in clause (iii)(x) of the definition of such term shall have been made Alternative Transaction, forty percent (40%) in place of references to the Company twenty percent (20%) and substituting sixty percent (60%) in place of references to eighty percent (80%)) or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive any letter of intent, agreement within twelve (12) months of such termination in principle, acquisition agreement or other similar agreement related to effect any Acquisition Proposalan Alternative Transaction, then Company shall on the date of an Alternative Transaction is consummated or any such consummation letter executed or such entry into a definitive agreementagreement entered into, the Company shall as applicable, pay Parent a fee of equal to $15,496,000 in cash 2,000,000 (the “Termination Fee”). Solely for purposes ) by wire transfer of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509immediately available funds.
(iib) If Parent terminates In the event that this Agreement is terminated (i) by Parent pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i8.1(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 be paid pay Parent the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent on the date of termination.
(and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any c) In event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in is payable under this Section 9.2(b) the 8.3, Company shall have no further liability or obligations also reimburse Parent for all of any kind its out-of-pocket expenses incurred by Parent in connection with this Agreement or and the termination transactions contemplated hereby other than as provided under herein, including fees and expenses of accountants, financial advisors and attorneys, and costs and expenses otherwise allocated to Parent pursuant to Section 9.2.
(d) Company acknowledges that the agreements contained in this Section 9.2(b). For 8.3 are an integral part of the avoidance of doubttransactions contemplated by this Agreement, in no event shall the and that, without these agreements, Parent would not enter into this Agreement; accordingly, if Company be obligated fails promptly to pay the Termination Fee amount due pursuant to this Section 8.3, and, in order to obtain such payment, Parent commences a suit which results in a judgment against Company for the fee set forth in this Section 8.3, Company shall pay to Parent its costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on more than one occasionthe amount of the fee at a rate per annum equal to the prime rate published in The Wall Street Journal on the date that such payment was required to be made plus 300 basis points.
Appears in 1 contract
Termination Fee. (a) The Company shall pay to Parent a nonrefundable fee of $68,250,000 in the event that:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xA)(1) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been publicly made to the Company or publicly disclosed proposed after the date of this Agreement and not withdrawn at least three (3) business days prior to the date Company Stockholders Meeting in the case of such a termination pursuant to Section 7.01(b)(iii) or (y2) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been publicly made or proposed or otherwise made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) Board after the date of this Agreement and not withdrawn at least three (3) business days prior to the termination date in the case of a termination pursuant to Section 7.01(b)(i) or expressly rejected Section 7.01(c)(i), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company prior or Parent pursuant to Section 7.01(b)(i) (at a time when the date of such termination, conditions set forth in Section 6.01(b) have been satisfied but the Company Stockholder Approval has not been obtained) or Section 7.01(b)(iii) or by Parent pursuant to Section 7.01(c)(i) and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date this Agreement is terminated, the Company consummates any Acquisition Proposal or enters into a definitive agreement within twelve (12) months of such termination with respect to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely Proposal that is thereafter consummated; provided that for purposes of clause (C) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein in the definition of Acquisition Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.;
(ii) If Parent terminates this Agreement is terminated by the Company pursuant to Section 9.1(e7.01(d)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 7.01(c)(ii); provided, that in the event this Agreement is terminated by either Parent under Section 7.01(c)(ii)(A) following an Adverse Recommendation Change in response to a Superior Proposal or the Company under Section 7.01(d)(ii), thenin either case, prior to the end of the Go-Shop Period or in connection with entering into a Company Acquisition Agreement with an Excluded Party, the nonrefundable fee payable by the Company pursuant to this Section 7.03(a) shall instead be an amount equal to $42,000,000. The Company shall pay any fee due under this Section 7.03(a) (the “Company Termination Fee”) to Parent or its designee by wire transfer of same-day funds (x) in the case of Section 7.03(a)(iii), within three two (32) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iiiy) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud Section 7.03(a)(ii), prior to or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after simultaneously with such termination as described or (z) in this the case of Section 9.2(b7.03(a)(i), two (2) business days after the Company shall have no further liability or obligations consummation of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, such Acquisition Proposal; it being understood that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasiononce.
(b) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(iii), then the Company shall pay to Parent Parent’s Expenses by wire transfer of same-day funds within two (2) business days after such termination, it being understood that in no event shall the payment for Expenses under this Section 7.03(b) exceed $7,000,000 (the “Expense Cap Amount”); provided that in the event that the Company Termination Fee shall become payable pursuant to Section 7.03(a), any amount previously paid by the Company pursuant to this Section 7.03(b) shall be credited against the amount of the Company Termination Fee due pursuant to Section 7.03(a).
(c) In the event that Parent or its designee shall receive full payment of the Company Termination Fee pursuant to Section 7.01(a), together with any reimbursement of applicable expenses pursuant to Section 7.03(b), the receipt of the Company Termination Fee and the expenses referred to in Section 7.03(b) shall be, except as provided in Section 7.02, the sole and exclusive remedy 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 (and the abandonment thereof) or any matter forming the basis for such termination. Except as provided in Section 7.02, upon payment by the Company of the Company Termination Fee and, if applicable, the reimbursement of such expenses, neither the Company nor any of its Affiliates shall have any further liability or obligation (under this Agreement or otherwise) relating to or arising out of this Agreement or any of the Transactions, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any Action against the Company or any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or Affiliates arising out of or in connection with this Agreement, any of the Transactions or any matters forming the basis for such termination.
(d) Each of the parties hereto acknowledges that the agreements contained in this Section 7.03 are an integral part of the Transactions, and that without these agreements, the other parties hereto would not enter into this Agreement; accordingly, if the Company or Parent, as applicable fails to timely pay any amount due pursuant to this Section 7.03, and, in order to obtain the payment, the other party commences an Action which results in a judgment against the first party for the payment set forth in this Section 7.03, the first party shall pay the other party for its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Action, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received.
Appears in 1 contract
Termination Fee. In the event that:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect made directly to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after its stockholders generally following the date of this Agreement, and thereafter (B) this Agreement and not withdrawn or expressly rejected is terminated by the Company prior or Parent pursuant to Section 7.1(b)(i) solely as a result of the date of such termination, failure to satisfy the Minimum Condition and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement with respect to, or consummates a transaction contemplated by, any Acquisition Proposal (replacing “10%” in the definition thereof with “66 2/3%”) within twelve (12) 12 months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.Agreement is terminated;
(ii) If this Agreement is terminated by Parent terminates pursuant to Section 7.1(c)(ii) (or by the Company pursuant to Section 7.1(b) following any time at which Parent was entitled to terminate this Agreement pursuant to Section 9.1(e7.1(c)(ii), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.); or
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable is terminated by the Company pursuant to the preceding clauses Section 7.1(d)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.3(a), the Company shall be paid by wire transfer pay to Parent a termination fee of immediately available funds to an account designated in writing by Parent $130,000,000 (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent“Termination Fee”). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, Any payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in required to be made pursuant to clause (i) of this Section 9.2(b7.3(a) shall be made to Parent concurrently with the Company shall have no further liability or obligations earlier to occur of (x) entry into a definitive agreement with respect to and (y) consummation of the transaction contemplated by the Acquisition Proposal referred to therein; any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance payment of doubt, in no event shall the Company be obligated to pay the Termination Fee on more required to be made pursuant to clause (ii) of this Section 7.3(a) shall be made to Parent promptly following termination of this Agreement by Parent (or the Company, as applicable) as set forth in such clause (ii) (and in any event not later than one occasionBusiness Day after delivery to the Company of notice of demand for payment); and any payment of the Termination Fee required to be made pursuant to clause (iii) of this Section 7.3(a) shall be made to Parent at the time provided for in Section 7.1(d)(ii).
Appears in 1 contract
Sources: Merger Agreement (Dell Inc)
Termination Fee. (i) If (A) (x) Parent or terminates this Agreement pursuant to Section 8.1(d), (y) the Company terminates this Agreement pursuant to Section 9.1(c8.1(d) and at such time Parent would be permitted to terminate this Agreement pursuant to Section 8.1(d), or (z) Parent terminates this Agreement pursuant to Section 9.1(d8.1(c) as a result of a breach, failure to perform or violation described in such Section 9.1(gthat (except with respect to a breach of Section 5.3(a)) first occurred following the making of an Acquisition Proposal of the type referenced in the following clause (B), (B) after the date hereof and prior to the date of such termination (except in the case of termination pursuant to Section 9.1(d8.1(g), all of in which case prior to the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xCompany Stockholder Approval being obtained) a bona fide Acquisition Proposal is publicly disclosed (other than any Acquisition Proposal described in clause (iii)(x) of whether by the definition of such term) shall have been Company or a third party), or otherwise made known to the Company Board of Directors or Company management, and in each case, is not withdrawn (publicly, if publicly disclosed after disclosed) at least three (3) Business Days prior to the earlier of the date of this Agreement the Company Stockholders Meeting and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination termination, an Acquisition Proposal is consummated or the Company enters into a definitive agreement within twelve (12) months in respect of such termination to effect any an Acquisition ProposalProposal is entered into, then on or prior to the date that is the earlier of (1) the date any such Acquisition Proposal is consummated and (2) the date of entry in any such consummation or such entry into a definitive agreement, the Company shall pay to Parent a fee of $15,496,000 450,000,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i8.2(b) (i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex IA, except that all references to “fifteen percent (15%)” or and “eighty five percent (85%)” therein shall be deemed to be references to “fifty percent (50%).”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If (A) Parent terminates this Agreement pursuant to Section 9.1(e8.1(e)(i) or (B) the Company terminates this Agreement pursuant to Section 8.1(d) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(e)(i), then, within three two (32) business days Business Days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h8.1(g), then, concurrently with or prior to (and as a condition to) such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv))termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any In the event any amount is payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) ), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein which account shall be designated by Parent upon written request by the Company to allow the contrary, payment shall not Company to pay or cause to be paid to Parent any amounts payable hereunder within the time periods required prior to the designation of such account by Parentthis Section 8.2). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding Notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement
Termination Fee. (ia) If (A) Parent or the Company terminates Notwithstanding any other provision of this Agreement, if this Agreement is terminated pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case either of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (iSections 10.1(e)(i), (ii) or 10.l(f), then the Company shall immediately pay to MergerSub a break-up fee of $11,000,000 (iiithe "Termination Fee"). In addition, (i) shall be paid by wire transfer of immediately available funds if this Agreement is terminated pursuant to an account designated Section 10.1(e)(iv) or 10.1(g) then in writing by Parent (andthe event that, notwithstanding anything herein to after the contrary, payment shall not be required date hereof and prior to such termination, either (A) a Third Party Acquisition occurs, or (B) any Third Party shall have made, proposed, communicated or disclosed an intention to make a proposal with respect to a Third Party Acquisition then the designation Company shall immediately pay to MergerSub the Termination Fee; or (ii) if this Agreement is terminated pursuant to Section 10.1(e)(iii) and within eighteen (18) months following the termination of such account by Parent). Except in this Agreement (A) a Third Party Acquisition occurs or (B) the case of common law fraud (not including in any event any constructive fraud Company or any fraud that is not intentional or deliberateof its Subsidiaries shall have entered into a definitive agreement with respect to a Third Party Acquisition, then the Company shall immediately pay to MergerSub the Termination Fee upon the first to occur of any of the events specified in clause (A) or a Willful Breach(B) of this clause (ii).
(b) The Company shall pay, notwithstanding anything else or reimburse MergerSub, within two Business Days of submission of one or more statements therefor, accompanied by reasonable supporting documentation, for the amount of all out of pocket costs, fees and expenses reasonably incurred by any of them or on their behalf arising out of, in connection with, or related to the contrary in this Agreement, payment the Merger and the consummation of all transactions contemplated by this Agreement (including, without limitation, HSR Act and other filing fees, fees and expenses of printers, accountants, financial advisors, attorneys, consultants and appraisers, or any Person providing or proposing to provide any portion of the Termination Fee shall constitute liquidated damagesFinancing, as well as commitment and from other fees, charges and after expenses of any such termination as described in Person) (the "Expenses"); if this Agreement is terminated by MergerSub pursuant to Section 10.1(c), provided, that, the Company's aggregate payments and reimbursements pursuant to this Section 9.2(b10.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionexceed $3,000,000.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 9.1(c), 7.01(b)(i) or by Parent pursuant to Section 9.1(d7.01(c)(i) or Section 9.1(g7.01(c)(iii); provided, that (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xA) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made made, proposed or otherwise communicated to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (yB) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date this Agreement is terminated, the Company enters into a definitive agreement within twelve with respect to the same Acquisition Proposal referred to in clause (12A) months of and such termination to effect any Acquisition ProposalProposal is subsequently consummated (even if after such twelve‑month period); provided, then on the date of such consummation or such entry into a definitive agreementthat, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (A) and (B) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1525%” or “85%” therein in the definition of Acquisition Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e), then, within three 7.01(c)(ii) or (3B) business days after such termination, by the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h7.01(d)(ii), ; then, concurrently with in any such termination event under clause (i) or (ii) of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.03(a), the Company shall pay or cause to be paid the Company Termination Fee to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid its designee by wire transfer of immediately available same day funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 7.03(a)(ii)(A), within two (not including 2) Business Days after such termination, (y) in any event any constructive fraud the case of Section 7.03(a)(ii)(B), simultaneously with such termination or any fraud that is not intentional or deliberate(z) or a Willful Breachin the case of Section 7.03(a)(i), notwithstanding anything else to within two (2) Business Days after the contrary in this Agreement, payment consummation of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Acquisition Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Momentive Performance Materials Inc.)
Termination Fee. If: ---------------
(i) If (A) Parent or the Company terminates The Buyer shall terminate this Agreement pursuant to Section 9.1(c7(a)(iv), Section 9.1(d) or Section 9.1(g), ; or
(B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (Cii) (x) either the Target or the Buyer shall terminate this Agreement pursuant to Section 7(a)(ii)(B), (y) prior to the Special Meeting a bona fide Acquisition Takeover Proposal (other than any Acquisition Proposal described in clause (iii)(x) of relating to the definition of such term) shall have Target has been made to the Company Target or publicly disclosed to the stockholders of the Target by any Person and (z) within 6 months after the date termination of this Agreement and not withdrawn prior to Agreement, the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company Target enters into a definitive agreement in respect of any Takeover Proposal or consummates any Takeover Proposal; or
(iii) any Person shall have made to the Target or to the stockholders of the Target a Takeover Proposal relating to the Target and thereafter (x) this Agreement is terminated pursuant to Section 7(a)(ii)(A) and (y) within twelve (12) 6 months after the termination of such termination to effect any Acquisition Proposalthis Agreement, then on the date of such consummation or such entry Target enters into a definitive agreement, the Company shall pay a fee agreement in respect of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition any Takeover Proposal or consummates any Takeover Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(iiiv) If Parent terminates the Buyer shall terminate this Agreement pursuant to Section 9.1(e7(a)(vi), then, (x) prior thereto a Takeover Proposal relating to the Target has been made to the Target or to the stockholders of the Target by any Person and (y) within three (3) business days 6 months after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv))Agreement, the Company shall pay Target enters into a definitive agreement in respect of any Takeover Proposal or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses consummates any Takeover Proposal, then in any case as described in clause (i), (ii), (iii) or (iii) iv), the Target shall be paid pay to the Buyer (by wire transfer of immediately available funds funds) an amount equal to an account designated in writing by Parent $2,000,000 (and, notwithstanding anything herein to not later than the contrary, payment shall not be required prior to the designation date of such account by Parent). Except termination of this Agreement in the case of common law fraud clause (i) and not including later than the date of execution of such alternative acquisition agreement or consummation of such alternate Takeover Proposal in any event any constructive fraud or any fraud that is not intentional or deliberatethe case of clauses (ii), (iii) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b(iv). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion).
Appears in 1 contract
Termination Fee. (i) If (A) Parent terminates this Agreement pursuant to Section 9.1(h), (B) after the date hereof and prior to the date of such termination, an Acquisition Proposal is publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least three (3) Business Days prior to the Company Shareholders’ Meeting, and (C) within twelve (12) months of such termination, an Acquisition Proposal is consummated or a definitive agreement providing for an Acquisition Proposal is entered into, on or prior to the date that is the earlier of (x) the date such Acquisition Proposal is consummated and (y) the date of entry of such definitive agreement, the Company shall pay to Parent a fee of $59,500,000 in cash (the “Termination Fee”).
(ii) If (A) after the date hereof and prior to the termination of this Agreement, an Acquisition Proposal is made to the Company Board of Directors or the Company’s management or becomes publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least three (3) Business Days prior to such termination, (B) (1) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B2) in the case of termination Parent terminates this Agreement pursuant to (x) Section 9.1(d)9.1(c)(ii)(A) due to a breach of, all or a failure to perform or comply with, one or more covenants or agreements under this Agreement following the making of the conditions set forth in such Acquisition Proposal or (y) Section 8.1 and Section 8.3 (other than Section 8.3(c)9.1(e)(ii) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination termination, an Acquisition Proposal is consummated or the Company enters into a definitive agreement within twelve providing for an Acquisition Proposal is entered into, on or prior to the date that is the earlier of (12x) months of the date such termination to effect any Acquisition Proposal, then on Proposal is consummated and (y) the date of entry of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (to Parent the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(iiiii) If Parent terminates this Agreement pursuant to (A) Section 9.1(e9.1(e)(i) or (B) Section 9.1(e)(ii) (in the case of this clause (B) if the Company has Willfully Breached Section 6.4 or Section 7.12(a) (other than the second sentence) or Section 7.12(b) (other than the second sentence)), thenwithin two (2) Business Days after such termination, within three the Company shall pay to Parent the Termination Fee.
(3iv) business days after If the Company terminates this Agreement pursuant to Section 9.1(g), substantially concurrently with or prior to (and as a condition to) such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iiiv) If In the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any event any amount is payable by the Company pursuant to the preceding clauses (i), (ii) ), (iii), or (iii) iv), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by P▇▇▇▇▇. Parent (and, notwithstanding anything herein shall promptly provide wire transfer instructions in writing to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud Company upon request (not including and in any event with sufficient time to allow the Company to pay or cause to be paid to Parent any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in payable hereunder within the time periods required by this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b)). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
(vi) Solely for purposes of Section 9.2(b)(i) and Section 9.2(b)(ii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.1, except that all references to “fifteen percent (15%)” and “eighty-five percent (85%)” therein shall be deemed to be references to “fifty percent (50%).”
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) a Takeover Proposal shall have been satisfied made, proposed or waivedcommunicated, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date Company Stockholders Meeting or prior to the termination of such termination or this Agreement if there has been no Company Stockholders Meeting, and (yB) a bona fide Acquisition Proposal following the occurrence of an event described in the preceding clause (iii)(x) of the definition of such term shall have been made to A), this Agreement is terminated by the Company or shall have been publicly disclosed (and in either such event, with respect Parent pursuant to which any director, officer Section 7.1(b)(i) or employee at the level of Senior Director Section 7.1(b)(iii) or above of the Company has actual knowledgeby Parent pursuant to Section 7.1(c)(i) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination with respect to effect any Acquisition Takeover Proposal, then on or any Takeover Proposal is consummated, in either case within one (1) year after the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely this Agreement; provided that for purposes of clause (C) of this Section 9.2(b)(i7.3(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable is terminated by the Company pursuant to the preceding clauses Section 7.1(d)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii); then, in any such event under clause (i), (ii) or (iii) of this Section 7.3(a), the Company shall be paid pay as directed by Parent the Termination Fee (as defined below), by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 7.3(a)(iii), within two (not including 2) business days after such termination, (y) prior to or currently with such termination if pursuant to Section 7.1(d)(ii), or (z) in any event any constructive fraud or any fraud that is not intentional or deliberatethe case of Section 7.3(a)(i), two (2) or a Willful Breach, notwithstanding anything else to business days after the contrary in this Agreement, payment earlier of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the entry into a Company shall have no further liability or obligations of any kind in connection with this Acquisition Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance consummation of doubt, a Takeover Proposal; it being understood that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion. As used herein, “Termination Fee” shall mean a cash amount equal to $6,298,475 (the “No-Shop Termination Fee” ), except in the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii) in order to enter into prior to the No-Shop Period Start Date a definitive agreement with respect to a Takeover Proposal, the Termination Fee shall mean a cash amount equal to $4,198,983 (the “Go-Shop Termination Fee”). Parent’s receipt of full payment of the Termination Fee pursuant to this Section 7.3(a) shall not relieve the Company of liability for any and all losses or damages suffered or incurred by Parent or Merger Sub 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 in the event of any willful and material breach by the Company of this Agreement.
(b) In the event that the Company shall terminate this Agreement pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii), then:
(i) in the case of a termination pursuant to Section 7.1(d)(i) or, subject to Section 7.3(b)(ii), Section 7.1(d)(iii), if at such time, the Company is not in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 6.2 not being satisfied and all conditions to Parent’s and Merger Sub’s obligations to consummate the Merger shall have been satisfied, then Parent shall pay to the Company a termination fee of $12,596,950 in cash;
(ii) in the case of a termination pursuant to Section 7.1(d)(iii), if (A) the Debt Financing or any alternative debt financing under Section 5.5 is not available to Parent or Merger Sub under the Debt Financing Commitments for any reason other than as the result of the failure of Affiliates of Parent to fund the Equity Financing and (B) at such time, the Company is not in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 6.2 not being satisfied and all conditions to Parent’s and Merger Sub’s obligations to consummate the Merger shall have been satisfied, then Parent shall pay to the Company a termination fee of $7,873,094 in cash; or (such payment, as applicable, the “Parent Termination Fee”), such payment to be made by wire transfer of same day funds within two (2) business days after the termination of this Agreement; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. In the event that the Company shall receive full payment pursuant to this Section 7.3(b), the receipt of the Parent Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by, and shall be the sole and exclusive remedy of, the Company or any other Person in connection with this Agreement, the Financing Letters or the Guarantee (and the termination hereof), 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 nor any other Person shall be entitled to bring or maintain any Action against Parent or Merger Sub arising out of or in connection with this Agreement, the Financing Letter or the Guarantee, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination.
(c) Each of the parties hereto acknowledge that the agreements contained in this Section 7.3 are an integral part of the Transactions, and that without these agreements, the other party would not enter into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 7.3, and, in order to obtain the payment, Parent or the Company, as the case may be, commences a suit which results in a judgment against the other party for the payment set forth in this Section 7.3, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received.
Appears in 1 contract
Sources: Merger Agreement (Dynamex Inc)
Termination Fee. (a) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii), then the Company shall pay to Parent concurrently with such termination the Termination Fee by wire transfer of same-day funds;
(b) In the event that this Agreement is terminated by Parent pursuant to Section 7.1(d)(i), then the Company shall pay to Parent the Termination Fee by wire transfer of same-day funds immediately following such termination of this Agreement; or
(c) If (i) If after the date of this Agreement, any Person shall have announced, commenced, publicly disclosed or made known to the Company Board a Takeover Proposal, (ii) thereafter, this Agreement is terminated (A) by either Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d7.1(b)(ii) or Section 9.1(g), 7.1(b)(iii) or (B) in the case of termination by Parent pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)7.1(d)(ii) shall have been satisfied or waived, and (Ciii) (x) a bona fide Acquisition Proposal (other than at any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed time after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) expiration of the definition twelfth (12th) month after the termination of such term shall have been made to this Agreement, the Company consummates any Takeover Proposal with such Person or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months related to any Takeover Proposal with such Person, then the Company shall pay Parent the Termination Fee by wire transfer of same-day funds on the earlier of the date of such termination to effect any Acquisition Proposal, then on entry and the date of such consummation or such entry into a definitive agreement, referred to in clause (iii) above. In no event shall the Company shall be required to pay a fee of $15,496,000 in cash the Termination Fee more than once.
(the “Termination Fee”). Solely for d) For purposes of this of:
(i) Section 9.2(b)(i7.3(c), the term “Acquisition Takeover Proposal” shall have the meaning assigned to such term in Annex I, Section 5.2 except that all references to “15%” or “8525%” therein shall be deemed to be references referenced to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. In the event that (iA)(x) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 9.1(c), Section 9.1(d7.1(b)(i) (and at the time of such termination a vote to obtain the Company Shareholder Approval has not been held) or Section 9.1(g7.1(b)(iii) (and prior to such termination a Takeover Proposal by a third party has been received or publicly announced or a third party has publicly announced an intention (whether or not conditional or withdrawn) to make a Takeover Proposal), (B) in the case of termination or by Parent pursuant to Section 9.1(d7.1(c)(i), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) Y) the Company enters into a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, definitive agreement with respect to which to, or consummates, a transaction contemplated by any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Takeover Proposal is consummated within twelve (12) months of such termination the date this Agreement is terminated, (B) this Agreement is terminated by Parent pursuant to Section 7.1(c)(iii) or (C) this Agreement is terminated by the Company enters into a definitive agreement within twelve (12) months of such termination pursuant to effect any Acquisition ProposalSection 7.1(d)(ii), then on the date in any such event under clause (A), (B) or (C) of such consummation or such entry into a definitive agreementthis Section 7.3(a), the Company shall pay to Parent a termination fee of $15,496,000 9,250,000 in cash (the “"Termination Fee”"). Solely Any payment required to be made pursuant to clause (A) of Section 7.3(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal (and in any event not later than two business days after delivery to the Company of notice of demand for purposes payment); any payment required to be made pursuant to clause (B) of Section 7.3(a) shall be made to Parent promptly following termination of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Agreement by Parent terminates this Agreement pursuant to Section 9.1(e), then, within three 7.1(c)(iii) (3) and in any event not later than two business days after such termination, delivery to the Company shall pay or cause of notice of demand for payment); and any payment required to be paid made pursuant to clause (C) of Section 7.3(a) shall be made to Parent prior to or simultaneously with (and as a condition to the Termination Fee.
(iiieffectiveness of) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv7.1 (d)(ii)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) . All such payments shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in In the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated fail to pay the Termination Fee required pursuant to this Section 7.3 when due, such fee shall accrue interest for the period commencing on more than one occasionthe date such fee became past due, at a rate equal to the rate of interest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank's Prime Lending Rate plus 1.00%. In addition, if the Company shall fail to pay such fee when due, the Company shall also pay to Parent all of Parent's costs and expenses (including attorneys' fees) in connection with efforts to collect such fee. The Company acknowledges that the fee and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, Parent would not enter into this Agreement.
Appears in 1 contract
Termination Fee. Section 10.3(a) of the APA is hereby amended and restated in its entirety as follows:
(a) If (i) If (A) Parent or the Company terminates this Agreement is terminated by Buyer or Parent pursuant to Section 9.1(c), Section 9.1(d10.1(b) or Section 9.1(g10.1(e), (B) in the case prior to such termination of termination pursuant to Section 9.1(d)this Agreement, all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied a written Acquisition Proposal is proposed or waivedpublicly disclosed, and (C) concurrently with or within twelve (12) months following the termination of this Agreement, either (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve with the Third Party (12) months or any Affiliate of such termination Third Party) that proposed or the Company publicly disclosed any Acquisition Proposal as contemplated by clause (a)(i)(B) above (such Third Party or any of its Affiliates an “Acquisition Party”) or (y) Parent or any Seller Party enters into a definitive agreement within twelve (12) months of such termination to effect providing for any Acquisition ProposalProposal with the Acquisition Party, or (ii) this Agreement is terminated by Buyer pursuant to Section 10.1(f), then on the date of in any such consummation or such entry into a definitive agreement, the Company event Parent shall pay to Buyer a fee of $15,496,000 2,200,000 in cash (the “Termination Fee”), such payment to be made promptly, but in any event no later than (x) in the case of clause (i), the earlier to occur of the consummation of such Acquisition Proposal or the entry into such definitive agreement for an Acquisition Proposal or (y) in the case of clause (ii), two (2) Business Days after the termination of this Agreement, it being understood that in no event shall Parent be required to pay the Termination Fee on more than one occasion; provided, however, that Parent shall not be required to pay Buyer the Termination Fee pursuant to Section 10.3(a)(i), if, as of the date this Agreement is terminated, neither of the conditions precedent in Section 9.1(e) have been satisfied (to the extent required to be satisfied). Solely for For purposes of this Section 9.2(b)(i10.3(a), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex ISection 7.7(g)(i), except that all (1) the reference in clause (A) thereof to “any of the Acquired Assets” shall be replaced by “50% or more of the fair market value of the Acquired Assets” and the references in clauses (B) and (C) thereof to “15%” or shall be replaced by “85%50” and (2) the proviso therein shall be deemed to be references to “50%disregarded.”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 9.1(c), 8.1(b) or by Parent pursuant to Section 9.1(d8.1(e) or Section 9.1(g8.1(g), ; (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Company Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made made, proposed or otherwise communicated to the Company or publicly disclosed in writing after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to but before the date of such termination, and (DC) any Acquisition Proposal within six months following the date this Agreement is consummated within twelve (12) months of such termination or terminated, the Company enters into a definitive agreement within twelve (12) months of with respect to such termination to effect any Company Acquisition Proposal; provided that, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (B) and (C) of this Section 9.2(b)(i8.3(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1510%” or “85%” therein in the definition of Company Acquisition Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e), then, within three 8.1(i) or (3B) business days after such termination, by the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h8.1(j), ; then, concurrently with in any such termination event under clause (i) or (ii) of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)8.3(a), the Company shall pay or cause to be paid the Termination Fee to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid its designee by wire transfer of immediately available same day funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 8.3(a)(ii)(A), within two Business Days after such termination, (not including y) in any event any constructive fraud the case of Section 8.3(a)(ii)(B), simultaneously with or any fraud that is not intentional prior to such termination or deliberate(z) or a Willful Breachin the case of Section 8.3(a)(i), notwithstanding anything else to the contrary in this Agreement, payment upon consummation of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Acquisition Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion.
(b) The Parties acknowledge and agree that the provisions for payment of the Termination Fee are an integral part of the Transactions and are included herein in order to induce the Parties to enter into this Agreement. Parent and Merger Sub agree that in the event this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b) or by Parent pursuant to Section 8.1(e) or Section 8.1(g) and the Termination Fee is paid to Parent pursuant to this Section 8.3, (i) the payment of such Termination Fee shall be (whether due to any willful, intentional or unintentional breach or for any other reason) the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Parent and Merger Sub and their respective equityholders and Affiliates against the Company or any of its directors, officers and other Affiliates for, and (ii) in no event will Parent or Merger Sub or any of their respective equityholders or Affiliates be entitled to recover any other money damages or any other remedy based on a claim in law or equity with respect to, (A) any loss suffered 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 upon payment to Parent of the Termination Fee in accordance with this Section 8.3, neither the Company nor any of its directors, officers or other Affiliates shall have any further liability or obligation to Parent or Merger Sub or any of their equityholders or Affiliates relating to or arising out of this Agreement or the Transactions.
Appears in 1 contract
Termination Fee. Notwithstanding any other provision of this Agreement:
(a) if this Agreement is terminated pursuant to Section 7.1(e)(i) or Section 7.1(f)(i), then the Company shall concurrently pay to the Parent a fee of $5,500,000 (the "Termination Fee");
(b) if (i) If (A) Parent or the Company terminates this Agreement is terminated pursuant to Section 9.1(c), Section 9.1(d7.1(b) or Section 9.1(g7.1(e)(ii), (Bii) in the case of prior to such termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide there exists an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of whether or not such term) shall have offer or proposal has been made to the Company rejected or publicly disclosed after the date of this Agreement and not has been withdrawn prior to the date time of such termination or termination), and (yiii) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date within 12 months of such termination, and (D) the Company or any of its Subsidiaries accepts a written offer for, or otherwise enters into an agreement to consummate or consummates, an Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposalwhich, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely solely for purposes of this Section 9.2(b)(i), the term “clause (iii) shall mean an "Acquisition Proposal” shall have the meaning assigned to such term " as defined in Annex ISection 5.6(f), except that all references therein to “15"20%” or “85%” therein " shall be deemed instead to be references to “"50%”"), and clause (iii)(x) then upon the signing of a definitive agreement relating to such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇or, ▇▇▇▇-▇▇▇if no such agreement is signed, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after then upon consummation of any such terminationAcquisition Proposal, the Company shall promptly pay or cause to be paid to the Parent the Termination Fee.;
(iiic) If the Company terminates if (i) this Agreement is terminated pursuant to Section 9.1(h7.1(d), then, concurrently with and (ii) within 12 months of such a termination of this Agreement by the Company as set forth in Section 9.1(h) (or any of its Subsidiaries accepts a written offer for, or otherwise enters into an agreement to consummate or consummates, an Acquisition Proposal, then upon the signing of a definitive agreement relating to such Acquisition Proposal, or, if laterno such agreement is signed, promptly following the provision by Parent then upon consummation of wire transfer instructions pursuant to Section 9.2(b)(iv))any such Acquisition Proposal, the Company shall promptly pay or cause to be paid to the Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.;
Appears in 1 contract
Termination Fee. In the event that:
(i) If this Agreement is terminated by the Company pursuant to Section 8.1(f);
(ii) this Agreement is terminated by Parent pursuant to Section 8.1(e); or
(iii) (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g)has knowledge of a Company Takeover Proposal, (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Company Takeover Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the holders of Company Shares or publicly disclosed after the date of (C) any Person has announced an intention (whether or not conditional) to make a Company Takeover Proposal, and thereafter this Agreement and not withdrawn prior is terminated pursuant to the date of such termination Section 8.1(b)(i), Section 8.1(b)(iii) or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationSection 8.1(c), and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company either enters into an Acquisition Agreement or consummates a definitive agreement within twelve (12) months Company Takeover Proposal other than with Parent or Merger Sub; then in the case of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) above, the Company shall be paid promptly, but in no event later than the date of the earliest such event, pay to Parent a fee equal to One Million Three Hundred Forty Four Thousand Dollars ($1,344,000) (the "Termination Fee"), payable by wire transfer of immediately available funds to an account designated in writing by Parent (andsame day funds; provided, notwithstanding anything herein to the contraryhowever, payment shall not be required prior to the designation of such account by Parent). Except that, in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breachtermination pursuant to Section 8.1(f), notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damagesbe payable prior to, and as a condition to, such termination.
(iv) 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 and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails promptly to make a payment due pursuant to this Section 8.3(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company, the Company shall pay to Parent and Merger Sub their reasonable costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amount set forth in this Section 8.3(b) at the publicly announced prime rate of Bank of America, N.A. plus two percent (2.0%) per annum, compounded quarterly, from and after the date such termination as payment was required to be paid. Payment of the fees described in this Section 9.2(b8.3(b) shall not be in lieu of damages incurred in the Company shall have no further liability or obligations event of any kind in connection with a breach of this Agreement or the termination contemplated hereby other than as provided under this described in Section 9.2(b). For the avoidance of doubt, in 8.2.
(v) In no event shall the Company be obligated to pay the Termination Fee on more than one occasionTermination Fee be payable hereunder.
Appears in 1 contract
Sources: Merger Agreement (Kratos Defense & Security Solutions, Inc.)
Termination Fee. (a) If this Agreement shall be terminated pursuant to:
(i) If Section 7.1(b)(i), 7.1(b)(ii) or 7.1(d)(i) and (Ax) Parent at any time after the date hereof and before such termination a Takeover Proposal shall have been publicly announced or otherwise communicated to the Company’s Board of Directors and (y) within twelve (12) months of the termination of this Agreement, the Company terminates this Agreement enters into a definitive agreement with any third party with respect to a Takeover Proposal or any such transaction involving a Takeover Proposal is consummated; or
(ii) Section 7.1(c)(ii) or 7.1(d)(ii) hereof, then the Company shall (1) in the case of termination pursuant to clause (i) of this Section 9.1(c7.3(a), Section 9.1(dupon the consummation of a transaction referenced in clause (y) or Section 9.1(g)thereof, (B2) in the case of termination pursuant to Section 9.1(d7.1(d)(ii), all not later than the close of business on the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waivedBusiness Day following such termination, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y3) a bona fide Acquisition Proposal described in clause (iii)(x) the case of the definition of such term shall have been made termination pursuant to the Company or shall have been publicly disclosed (and in either such eventSection 7.1(c)(ii), with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to on the date of such termination, and pay Buyer a non-refundable fee in an amount equal to six million two hundred fifty thousand dollars (D$6,250,000) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contraryCompany by Buyer. For purposes of this paragraph (a), payment “Takeover Proposal” shall not have the meaning assigned to such term in Section 9.1, except that all references to “15%” shall be required prior changed to “35%”.
(b) If this Agreement is terminated under any of the circumstances described in Section 7.3(a) (but with respect to Section 7.3(a)(i), without regard to whether any of the circumstances described in clause (y) thereof have occurred), the Company shall reimburse Buyer for all its documented out-of-pocket fees and expenses up to a maximum amount of $1,250,000 (including attorney’s fees and any commitment and other fees payable by Buyer under any financing commitment letter Buyer has secured) incurred in connection herewith and the transactions contemplated hereby (the “Company Expense Reimbursement Amount”), which reimbursement shall be made in cash by wire transfer of immediately available funds to an account designated in writing to the designation Company by Buyer, not later than the close of business on the fifth (5th) Business Day following such account by Parent)termination. Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding Notwithstanding anything else to the contrary in this Agreement, the parties hereby acknowledge that in the event that both the Termination Fee and the Company Expense Reimbursement Amount are paid by the Company pursuant to this Section 7.3, the Termination Fee and Company Expense Reimbursement Amount shall be Buyer’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
(c) If the Company fails to promptly pay the Termination Fee or the Company Expense Reimbursement Amount, and, in order to obtain such payment Buyer commences a suit that results in a judgment against the Company for the Termination Fee or the Company Expense Reimbursement Amount, the Company shall pay to Buyer its costs and expenses (including attorney’s fees) in connection with such suit, together with interest on the amount of the Termination Fee shall constitute liquidated damagesat a rate equal to the prime rate announced from time to time by Wachovia Bank, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionNational Association plus 3% per annum.
Appears in 1 contract
Termination Fee. (ia) If (A) Parent or the Company terminates this Agreement is terminated by Acquiror pursuant to Section 9.1(c), Section 9.1(d3.6(h) or Section 9.1(g), (B) in by the case of termination Company pursuant to Section 9.1(d3.6(g), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee to Acquiror (by wire transfer of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(iimmediately available funds), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days two Business Days after such termination, the Company shall pay or cause a fee in an amount equal to be paid to Parent the Termination Fee.
(iiib) If (i) this Agreement is terminated (A) by Acquiror pursuant to Section 3.6(f) in respect of a Willful Breach, or (B) by the Company terminates pursuant to Section 3.6(b) (but only if at such time Acquiror would have been entitled to terminate this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in 3.6(b) or Section 9.1(h3.6(f) (or, if later, promptly following the provision by Parent in respect of wire transfer instructions pursuant to Section 9.2(b)(iva Willful Breach)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) prior to such termination, an Acquisition Proposal shall have been publicly disclosed or otherwise made or communicated to the Company or the Company Board, and not withdrawn and (iii) within 12 months following the date of such termination of this Agreement, either (A) the Company shall be paid have entered into a definitive agreement with respect to such Acquisition Proposal or (B) such Acquisition Proposal shall have been consummated, then in any such event the Company shall pay to Acquiror (by wire transfer of immediately available funds funds), within two Business Days following the earlier to occur of the consummation of such Acquisition Proposal or the execution of such definitive agreement, the Termination Fee (it being understood that for purposes of this Section 3.8(b)(iii), (x) all references in the definition of Acquisition Transaction to 15% shall be deemed instead to be references to “more than 50%” and (y) the reference in the definition of Acquisition Proposal to “inquiry” shall be deemed removed. If after the date hereof a Person (other than a Buyer Party) makes an account designated in writing by Parent (and, notwithstanding anything herein Acquisition Proposal that has been publicly disclosed or otherwise made or communicated to the contrary, payment shall not be required Company or the Company Board and subsequently withdrawn prior to the designation termination of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment and within 12 months following the date of the Termination Fee termination of this Agreement, such Person or any of its controlled Affiliates makes an Acquisition Proposal that is publicly disclosed or otherwise made or communicated to the Company or the Company Board, such initial Acquisition Proposal shall constitute liquidated damages, and from and after such termination as described in be deemed to have been “not withdrawn” for purposes of this Section 9.2(b3.8(b).
(c) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, The parties agree and understand that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasionoccasion and in no event shall the Company be required to pay more than one Termination Fee. In the event that Acquiror shall be entitled to receive and receives full payment of the Termination Fee from or on behalf of the Company pursuant to this Section 3.8(c), the receipt of the Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Buyer Parties and any of their respective Affiliates as a result of the actions of the Company or its Affiliates in connection with this Agreement (and the termination hereof) or any matter forming the basis for such termination, and shall be the sole remedy of the Buyer Parties and their respective Affiliates.
Appears in 1 contract
Sources: Merger Agreement (SPX Corp)
Termination Fee. (a) In the event that:
(i) If 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) [Company breach]; provided that (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c)a bona fide Takeover Proposal shall have been made (or, Section 9.1(d) or Section 9.1(g), (B) in the case of a termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)7.01(b)(iii) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made [failure to receive the Company or Stockholder Approval], publicly disclosed made) by a third party after the date of this Agreement and not withdrawn (or, in the case of a termination pursuant to Section 7.01(b)(iii) [failure to receive the Company Stockholder Approval], publicly withdrawn) prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) earlier of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above completion of the Company has actual knowledgeStockholders’ Meeting (including any adjournment or postponement thereof) after and the time this Agreement is terminated and (B) within 12 months of the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationis terminated, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination with respect to effect any Acquisition a Takeover Proposal; provided that, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (A) and (B) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e), then, within three 7.01(c)(ii) [Adverse Recommendation Change] or (3B) business days after such termination, by the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), 7.01(d)(ii) [entry into a Company Acquisition Agreement]; then, concurrently with in any such termination event under clause (i) or (ii) of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.03(a), the Company shall pay or cause to be paid the applicable Company Termination Fee to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid its designee by wire transfer of immediately available same-day funds to an account designated in writing by so long as Parent has timely provided the Company with wire instructions for such payment (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful BreachSection 7.03(a)(ii)(A), notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and within two Business Days after such termination, (y) in the case of Section 7.03(a)(ii)(B), prior to or concurrently with such termination as described or (z) in this the case of Section 9.2(b) the Company shall have no further liability 7.03(a)(i), prior to or obligations of any kind in connection concurrently with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, entry into such definitive agreement with respect to a Takeover Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay or cause to be paid the applicable Company Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (ZimVie Inc.)
Termination Fee. (ia) If In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) (and at the time of such termination a bona fide Acquisition Proposal vote to obtain the Company Stockholder Approval has not been held) or Section 7.1(b)(iii), (other than y) prior to such termination, any Acquisition Proposal described Person or “group” (as defined in clause (iii)(xSection 13(d) of the definition Exchange Act), other than Parent and its Subsidiaries, Affiliates and Representatives (on behalf of such term) Parent), shall have been made publicly announced (and shall not have withdrawn) an intention (whether or not conditional or withdrawn) to make a Takeover Proposal or such Takeover Proposal has otherwise become publicly known and (z) the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) enters into a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, definitive agreement with respect to which to, or consummates, a transaction contemplated by any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Takeover Proposal is consummated within twelve (12) months of such termination the date this Agreement is terminated, (B) this Agreement is terminated by Parent pursuant to Section 7.1(c)(iii) or (C) this Agreement is terminated by the Company enters into a definitive agreement within twelve (12) months of such termination pursuant to effect any Acquisition ProposalSection 7.1(d)(ii), then on the date in any such event under clause (A), (B) or (C) of such consummation or such entry into a definitive agreementthis Section 7.3(a), the Company shall pay to Parent a termination fee of $15,496,000 15,000,000 in cash (the “Company Termination Fee”). Solely for purposes Any payment required to be made pursuant to clause (A) of this Section 9.2(b)(i)7.3(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the term “Acquisition consummation of, any transaction contemplated by a Takeover Proposal” ; any payment required to be made pursuant to clause (B) of this Section 7.3(a) shall have the meaning assigned be made to Parent promptly following (and in any event not later than two business days after) termination of this Agreement by Parent pursuant to such term in Annex I, except that all references section; and any payment required to “15%” or “85%” therein be made pursuant to clause (C) of this Section 7.3(a) shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid made to Parent prior to or simultaneously with (and as a condition to the Termination Fee.
(iiieffectiveness of) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv7.1(d)(ii)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) . All such payments shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent.
(b) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(i) or 7.1(d)(iii),or by Parent or the Company pursuant to Section 7.1(b)(i) at a time when the Agreement could have been terminated by the Company pursuant to Section 7.1(d)(iii) then Parent shall pay to the Company a termination fee of $20,000,000 in cash (andthe “Parent Termination Fee”), notwithstanding it being understood that in no event shall Parent to be required to pay the Parent Termination Fee on more than one (1) occasion. If the Parent Termination Fee becomes payable pursuant to this Section 7.3(b), it shall be paid no later than three (3) Business Days after the termination of this Agreement pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii).
(c) In the event that the Company shall fail to pay the Termination Fee when due, or Parent shall fail to pay the Parent Termination Fee when due, as the case may be, such payment amount shall accrue interest for the period commencing on the date such payment amount became past due, at a rate equal to the rate of interest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank’s Prime Lending Rate. In addition, if either party shall fail to pay such payment amount when due, such party shall also pay to such other party all of such other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such payment amount. Each of the Company and Parent acknowledges that the payment amounts and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, neither the Company nor Parent would enter into this Agreement.
(d) If this agreement is terminated by the Company pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii), the Company’s right to receive payment of the Parent Termination Fee from Parent in respect thereof shall be the sole and exclusive remedy of the Company and its Affiliates against Parent or Merger Sub or any of their respective former, current or future stockholders, directors, officers, employees, representatives or Affiliates (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise (“Company Damages”) and upon payment of such amount none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions (except that Parent shall also be obligated with respect to Section 7.3(c)).
(e) Notwithstanding anything herein to the contrary, payment (i) the maximum aggregate liability of Parent and Merger Sub for all Company Damages (inclusive of the Parent Termination Fee), shall not be required prior limited to an amount equal to the designation Parent Termination Fee plus any amounts that become due under Section 7.3(c) (the “Parent Liability Limitation”), and in no event shall the Company or any of its Affiliates seek (x) any Company Damage in excess of such account by Parent). Except in the case of common law fraud amount, (not including y) any Company Damages in any event amount if the Parent Termination Fee has been paid or (z) any constructive fraud other recovery, judgment, or damages of any kind, including equitable relief or consequential, indirect, or punitive damages, against Parent and Merger Sub or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind other Parent Related Parties in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For Transactions and (ii) the avoidance Company acknowledges and agrees that it has no right of doubtrecovery against, and no personal liability shall attach to, in no event each case with respect to Company Damages, any of the Parent Related Parties, through Parent or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Parent against or any other Parent Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise, except for its rights to recover the Parent Termination Fee or Company Damages subject to the Parent Liability Limitation, from Parent (but not any other Parent Related Party), in each case, subject to the Parent Liability Limitation and the other limitations described therein and herein. Subject to the limitations contained herein, recourse against Parent hereunder shall be the sole and exclusive remedy of the Company be obligated to pay and its Affiliates against any other Parent Related Party in respect of any liabilities or obligations arising under, or in connection with, this Agreement or the Termination Fee on more than one occasionTransactions.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) this Agreement is terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c6.1(d), or by Parent pursuant to Section 9.1(d6.1(g) or Section 9.1(g6.1(i), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide any Alternative Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have has been made known to the Company or publicly disclosed 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 and not withdrawn but prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such eventor, with respect to which any directora termination pursuant to Section 6.1(d), officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, Company Stockholders Meeting and (DC) any Acquisition Proposal is consummated the Company, within twelve (12) months of such termination or the Company date this Agreement is terminated, enters into a definitive agreement within twelve with respect to, any Alternative Acquisition Proposal or an Alternative Acquisition Proposal is consummated (12) months of such termination to effect any Acquisition Proposalprovided, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 9.2(b)(iclause (C), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein in the definition of Alternative Acquisition Proposal shall be deemed to be references to “50%”), and clause (iii)(x) then within two Business Days of the earlier of entering into such definitive agreement or consummation of such “Alternative Acquisition Proposal” definition , the Company shall be deemed pay to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.Parent by wire transfer of immediately available funds the Company Termination Fee;
(ii) If Parent terminates this Agreement is terminated by the Company pursuant to Section 9.1(e6.1(f), thenthen prior to or substantially concurrently with such termination the Company shall pay to Parent the Company Termination Fee by wire transfer of immediately available funds; or
(iii) this Agreement is terminated by Parent pursuant to Section 6.1(e), then within three (3) business days after two Business Days of such termination, the Company shall pay or cause to be paid to Parent the Company Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid Fee by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud funds; it being understood that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Zayo Group LLC)
Termination Fee. (i) If this Agreement is terminated by Parent pursuant to Section 10.01(c)(i) or Section 10.01(c)(iii), or by the Company pursuant to Section 10.01(d)(i), then the Company shall pay to Parent in immediately available funds $80,000,000 (the "Termination Fee"), in the case of a termination by Parent, within one Business Day after such termination and, in the case of a termination by the Company, immediately before and as a condition to such termination.
(ii) If (A) this Agreement is terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d10.01(b)(i) or Section 9.1(g10.01(b)(iii), or by Parent pursuant to Section 10.01(c)(ii) (but only if the failure to satisfy the condition specified therein results from an intentional breach by the Company of any of its representations, warranties, covenants or agreements contained herein), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn prior to such termination, an Acquisition Proposal shall have been publicly announced or expressly rejected by otherwise been communicated to the Board of Directors of the Company prior to or its stockholders and not publicly withdrawn and (C) within 12 months following the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters shall have entered into a definitive agreement within twelve with respect to or recommended to its stockholders an Acquisition Proposal or an Acquisition Proposal shall have been consummated, whether or not with the party that announced or communicated the Acquisition Proposal described in clause (12B) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash above (the “Termination Fee”). Solely provided that for purposes of this Section 9.2(b)(iclauses (B) and (C), the term “Acquisition Proposal” shall have the meaning assigned each reference to such term in Annex I, except that all references to “"15%” or “85%” therein " in the definition of Acquisition Proposal shall be deemed to be references a reference to “"50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e"), then, within three (3) business days after such termination, then the Company shall pay or cause to be paid to Parent in immediately available funds, concurrently with the occurrence of the applicable event described in clause (C), the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud The parties hereto acknowledge and hereby agree that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion, whether nor not the Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events. Any Termination Fee payable pursuant to Section 11.04(b)(ii) shall be reduced by the full amount of any Expense Reimbursement Amount previously or contemporaneously paid to Parent pursuant to Section 11.04(c), and, for avoidance of doubt, in no event shall the aggregate amount of the Company's obligations under Sections 11.04(b) and 11.04(c) exceed the amount of the Termination Fee, other than as contemplated by Section 11.04(d).
(iv) 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 financing agreements or in respect of any other document or any of the transactions contemplated hereby or thereby 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 financing agreements or in respect of any other document or any of the transactions contemplated hereby or thereby or theory of law or equity and agrees to cause any such action or proceeding asserted by the Company (on behalf of itself and any of its Affiliates, directors, officers, employees, agents and representatives) in connection with this Agreement, the financing commitments, the Financing, the financing agreements or in respect of any other document or any of the transactions contemplated hereby or thereby 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 this Agreement, the financing commitments, the Financing, the financing agreements or the transactions contemplated hereby or thereby. The provisions of this Section 11.04(b)(iv) 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 11.04(b)(iv).
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If this Agreement is terminated (A) Parent or by the Company terminates this Agreement or Parent pursuant to Section 9.1(c), Section 9.1(d7.01(b)(i) or Section 9.1(g7.01(b)(iii), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) a bona fide Takeover Proposal shall have been satisfied publicly made, proposed or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made otherwise communicated or delivered to the Company or shall have otherwise become publicly disclosed known after the date of this Agreement and such Takeover Proposal shall not have been withdrawn in good faith prior to such termination (x) in the case of a termination pursuant to Section 7.01(b)(i), prior to the date of such termination or (y) in the case of a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made termination pursuant to the Company or shall have been publicly disclosed (and in either such eventSection 7.01(b)(iii), with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationthe Stockholders Meeting, and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date this Agreement is so terminated, the Company (1) enters into a definitive agreement within twelve Company Acquisition Agreement with any Person or Persons with respect to any Takeover Proposal and such Takeover Proposal is subsequently consummated or (122) months of such termination to effect consummates any Acquisition Takeover Proposal; provided that, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (B) and (C) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e7.01(c)(ii) or (B) by the Company pursuant to Section 7.01(d)(ii), ; then, within three in any such event under clause (3i) business days after such terminationor (ii) of this Section 7.03, the Company shall pay (or cause to be paid paid) the Company Termination Fee to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid its designee by wire transfer of immediately available same day funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 7.03(a)(ii)(A), within two Business Days after such termination, (not including y) in any event any constructive fraud the case of Section 7.03(a)(ii)(B), prior to or any fraud that is not intentional concurrently (and as a condition to such termination) with such termination or deliberate(z) or a Willful Breachin the case of Section 7.03(a)(i), notwithstanding anything else to within two Business Days after the contrary in this Agreement, payment consummation of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Takeover Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay (or cause to be paid) the Company Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. Notwithstanding anything in this Agreement to the contrary, if:
(i) If (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d9.01(c) (Superior Proposal) to enter into a written definitive agreement with a Third Party or Section 9.1(g), (B) in the case of termination by Rorschach pursuant to Section 9.1(d9.01(b) (Company Adverse Recommendation Change), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent Rorschach in immediately available funds the Termination Fee., in the case of a termination by Rorschach, within two (2) Business Days after such termination and, in the case of a termination by the Company, immediately before and as a condition to such termination;
(iiiii) If prior to receipt of the Company terminates Required Stockholder Approval,
A. this Agreement is terminated by the Company or Rorschach pursuant to Section 9.1(h9.01(d) (Outside Date) or Section 9.01(f) (Company No Vote), then, concurrently with such or by Rorschach pursuant to Section 9.01(g) (Company Breach); and
B. at any time after the date of this Agreement but prior to the termination of this Agreement by (in the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent case of wire transfer instructions a termination pursuant to Section 9.2(b)(iv9.01(d) (Outside Date) or Section 9.01(g) (Company Breach)) or the date of the Company Stockholders’ Meeting (in the case of a termination pursuant to Section 9.01(f) (Company No Vote)), a Takeover Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company or the Company Board after the date of this Agreement; and
C. within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with any Third Party with respect to any Takeover Proposal or a Takeover Proposal is consummated (provided that for purposes of this Section 9.03(a)(ii), each reference to “20%” in the definition of Takeover Proposal shall be deemed to be a reference to “more than 50%”); then the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of Rorschach in immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionthe earlier of (x) the date on which a definitive agreement with respect to a Takeover Proposal was executed by the Company and (y) concurrently with the consummation of such Takeover Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Sonnet BioTherapeutics Holdings, Inc.)
Termination Fee. (ia) If (A) Parent or the Company terminates The parties hereto agree that if this Agreement is terminated pursuant to Section 9.1(c7.1(e), Section 9.1(d) or Section 9.1(g7.1(f), (B) then the Company shall pay to Parent 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, 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 9.1(d)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, all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)y) shall have been satisfied or waived, and (C) (x) a bona fide an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have has been announced publicly or made to the Company or publicly disclosed after the date hereof (but prior to the termination of this Agreement Agreement) and such Acquisition Proposal has not been withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationAgreement, and (Dz) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement Company Acquisition Agreement or consummates an Acquisition Proposal within twelve (12) months of after such termination to effect any Acquisition Proposaltermination, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee the Termination Fee to Parent on the earlier of $15,496,000 in cash (the “Termination Fee”)date of entry into such Company Acquisition Agreement or consummation of such Acquisition Proposal. Solely for For purposes of this Section 9.2(b)(i7.3(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex ISection 5.3(h)(i), except that all the references to “15twenty percent (20%)” or “85%” therein shall be deemed to be references to “fifty percent (50%)”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(iic) If Parent terminates The parties hereto agree that if this Agreement is terminated pursuant to Section 9.1(e7.1(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 of an Acquisition Proposal (regardless of when the Company received such Acquisition Proposal), thenthen the Company shall pay to Parent the reasonable costs, within three fees and expenses incurred by Parent, its affiliates and their Representatives in connection with the investigation, due diligence, negotiation and documentation of this Agreement, such amount not to exceed $400,000 in the aggregate (3) business days after such terminationthe “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 also pay or cause to be an additional $200,000 (“Additional Expense Amount”). In the event the Expense Reimbursement is paid to Parent and the Termination FeeFee thereafter becomes payable, the Termination Fee otherwise payable shall be reduced by the amount of such Expense Reimbursement and Additional Expense Amount, if any.
(iiid) If the Company terminates All payments under this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) 7.3 shall be paid made by wire transfer of immediately available funds to an account designated in writing by Parent (andParent, notwithstanding anything herein to or in the contrary, payment shall not be required prior to the designation 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 7.3 are an integral part of the transactions contemplated by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment and (ii) the damages resulting from termination of this Agreement under circumstances in which the Termination Fee shall or Expense Reimbursement is payable pursuant to this Section 7.3 are not a penalty but rather constitute liquidated damagesdamages 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 from (iii) without these agreements, Parent, Merger Sub and after the Company would not enter into this Agreement. Accordingly, if the Company fails to pay the Termination Fee when due, and, in order to obtain such termination as described payment, Parent commences a Proceeding that results in this Section 9.2(b) a judgment against the Company for the Termination Fee, the Company shall have no further liability or obligations pay to Parent, together with the Termination Fee, (A) interest on the Termination Fee from the date of any kind 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) in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b)such Proceeding. For the avoidance of doubt, in no event shall the Company be obligated 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 Section 7.3, Parent’s receipt of the Termination Fee, Expense Reimbursement or Additional Expense Amount (as applicable) from or on behalf of the Company shall 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 failure of the Merger or the other transactions contemplated by this Agreement to be consummated and for any breach or failure to perform hereunder or otherwise, and upon payment of such amount, no such Person shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Genvec Inc)
Termination Fee. (a) In the event that (i) If (A) Parent prior to the termination of this Agreement, any Competing Proposal is publicly proposed or publicly disclosed prior to, and, in each case, not publicly withdrawn at the Company terminates time of the Stockholders’ Meeting, and (B) this Agreement is terminated by Seller pursuant to Section 9.1(c10.1(c)(ii) (but only if at such time Buyer would not be prohibited from terminating this Agreement by application of Section 10.1(b)(ii)), by Buyer pursuant to Section 9.1(d10.1(b)(i) or Section 9.1(g10.1(b)(ii), (B) in the case of termination by Buyer or Seller pursuant to Section 9.1(d10.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) within twelve months after such termination, any definitive agreement providing for a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) Qualifying Transaction shall have been made to the Company or publicly disclosed after the date of entered into and consummated, (ii) this Agreement and not withdrawn prior is terminated by Seller pursuant to the date of such termination Section 10.1(e), or (yiii) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected is terminated by the Company prior Buyer pursuant to the date of such terminationSection 10.1(f), and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company Seller shall pay Buyer a fee non-refundable termination fee, without offset or reduction of any kind, in an amount of $15,496,000 in cash 2,619,000 (the “Termination Fee”). Solely for purposes , such payment to be made in the case of this (x) Section 9.2(b)(i10.3(a)(i) upon consummation of a Qualifying Transaction, (y) Section 10.3(a)(iii), the term “Acquisition Proposal” shall have the meaning assigned to within two Business Days of such term in Annex Itermination, except or (z) Section 10.3(a)(ii), within two Business Days of such termination; provided that all references to “15%” or “85%” therein such termination shall be deemed to have occurred only upon the expiration of the five Business Day notice period provided for in Section 6.4(c), it being understood that in no event shall Seller be references required to “50%”, and clause (iii)(xpay the fee referred to in this Section 10.3(a) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement on more than one occasion. Any Termination Fee payable pursuant to this Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii10.3(a) shall be paid by wire transfer of immediately available funds to an account designated one or more accounts specified by Buyer in writing by Parent to Seller.
(and, notwithstanding b) Notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of in the event that the Termination Fee is paid by Seller pursuant to Section 10.3(a), Seller shall constitute liquidated damagesnot have any liability of any nature whatsoever to Buyer with respect to any breach of this Agreement or failure of the Closing to occur, other than liability for any intentional and willful breach of this Agreement occurring prior to the termination of this Agreement or to the extent such liability was the result of fraud.
(c) Seller and Buyer acknowledge and agree that the agreements contained in Section 10.2 and this Section 10.3 are an integral part of the transactions contemplated by this Agreement, and from that, without these agreements, neither Buyer nor Seller would have entered into this Agreement; accordingly if Seller fails to promptly pay the amounts due pursuant to Section 10.3, and after in order to obtain such termination as described payment, Buyer commences a suit that results in this a judgement against Seller for the amounts set forth in Section 9.2(b10.3, or any portion thereof, Seller shall pay Buyer its costs and expenses (including reasonable attorneys’ fees) the Company shall have no further liability or obligations of any kind in connection with this Agreement such a suit, together with interest on the amount or such portion thereof as the termination contemplated hereby other than U.S. prime rate as provided under this Section 9.2(b). For shown at the avoidance end of doubtthe trading day on Bloomberg screen BTMM or PRIME INDEX HP, in no event shall whichever is higher, on the Company date such payment was required to be obligated to pay made through the Termination Fee on more than one occasiondate of such payment.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Thestreet, Inc.)
Termination Fee. (a) In the event that:
(i) If (A) Parent or the Company terminates this Agreement is terminated by the Partnership or Parent pursuant to Section 9.1(c), Section 9.1(d7.01(b)(i) or Section 9.1(g), (B7.01(b)(iii) in the case of termination or by Parent pursuant to Section 9.1(d7.01(c)(i), all of the conditions set forth in Section 8.1 and Section 8.3 ; provided that (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xA) a bona fide Acquisition Takeover Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company Partnership Board or publicly disclosed made, proposed or communicated by a third party after the date of this Agreement and not withdrawn prior to the date of such termination or time this Agreement is terminated and (yB) a bona fide Acquisition Proposal described in clause (iii)(x) within 12 months of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by is terminated, the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company Partnership enters into a definitive agreement within twelve (12) months of such termination to effect consummate any Acquisition Takeover Proposal or consummates any Takeover Proposal; provided that, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (A) and (B) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If this Agreement is terminated (A) by Parent terminates pursuant to Section 7.01(c)(ii) or by the Partnership or Parent pursuant to Section 7.01(b)(i) if Parent could have terminated this Agreement pursuant to Section 9.1(e7.01(c)(ii) at such time, or (B) by the Partnership pursuant to Section 7.01(d)(ii); then, in any such event under clause (i) or (ii) of this Section 7.03(a), then, within three (3) business days after such termination, the Company Partnership shall pay or cause to be paid the Partnership Termination Fee to Parent or its designee by wire transfer of same-day funds to an account designated by Parent for such payment (x) in the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to case of Section 9.1(h7.03(a)(ii)(A), thenwithin two business days after such termination, concurrently (y) in the case of Section 7.03(a)(ii)(B), simultaneously with such termination or (z) in the case of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.03(a)(i), within two business days after the Company earlier of the entry into a definitive agreement or the consummation of the Takeover Proposal referred to therein; it being understood that in no event shall the Partnership be required to pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the applicable Partnership Termination Fee on more than one occasion. In the event that the Parent Expenses have been actually paid by the Partnership pursuant to Section 7.03(c) upon subsequent payment of the Partnership Termination Fee pursuant to this Section 7.03(a), the amount of the Parent Expenses shall be credited towards the payment of the Partnership Termination Fee.
Appears in 1 contract
Termination Fee. (i) If (A) Parent or In the Company terminates event that this Agreement is terminated pursuant to Section 9.1(c8.1(e), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay to Parent a termination fee of $15,496,000 in cash 50,000,000 (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates In the event that this Agreement is terminated pursuant to Section 9.1(e)8.1(f)(ii)(A) as a result of an intentional or willful breach by the Company, thenand after the date hereof but prior to the vote on this Agreement at the Company Stockholders’ Meeting, within three an Acquisition Proposal has been publicly announced (3whether by the Company or any other Person) business days after such terminationand has not been expressly and bona fide publicly withdrawn, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If In the event that this Agreement is terminated pursuant to Section 8.1(d) and, after the date hereof but prior to the vote on this Agreement at the Company terminates Stockholders’ Meeting, (A) an Acquisition Proposal has been publicly announced (whether by the Company or any other Person) and has not been expressly and bona fide publicly withdrawn and (B) on or prior to the twelve-month anniversary of the termination of this Agreement pursuant to Section 9.1(h8.1(d), then, concurrently with such termination of this Agreement by a Competing Transaction is consummated or the Company as set forth in Section 9.1(h) enters into an agreement with respect to a Competing Transaction which is ultimately consummated (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant whether prior to Section 9.2(b)(iv)or after such twelve-month period), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount The Termination Fee shall be payable (A) in the case of Sections 8.2(e)(i) or 8.2(e)(ii), within two (2) Business days after the termination of this Agreement pursuant to Section 8.1(e) or 8.1(f)(ii)(A), respectively, and (B) in the case of Section 8.1(e)(iii), within two (2) Business Days after the date on which a Competing Transaction is consummated.
(v) In no event shall the fee payable by the Company pursuant to this Section 8.2(e) exceed the preceding clauses (i)amount of the Termination Fee, (ii) or (iiiand any amounts paid pursuant to Section 8.2(b) shall be paid credited against the Termination Fee.
(vi) If at any time a fee becomes payable by wire transfer of immediately available funds the Company pursuant to an account designated in writing by this Section 8.2(e), Parent shall have the right (andbut not the obligation), notwithstanding anything herein at its option, to terminate its obligations under the contraryStock Purchase Agreement. Notwithstanding the foregoing, payment the Company shall not be required prior obligated to pay to Parent the designation Termination fee pursuant to Sections 8.2(e)(iii) if Parent shall have breached its obligations under Section 6.18. The Company and Parent acknowledge and agree that the agreements contained in this Section 8.2(e) are an integral part of such account the transactions contemplated by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.2(e), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee, 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 amount of the Termination Fee shall constitute liquidated damagesfrom the date such payment was required to be made until the date of payment at the prime rate of Citibank, and from and after N.A. in effect on the date such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company payment was required to be obligated to pay the Termination Fee on more than one occasionmade.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Termination Fee. (a) In the event that:
(i) If (A) Parent or a Third Party shall have made a Competing Proposal after the Company terminates date of this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g)Agreement, (B) this Agreement is subsequently terminated by (x) the Company or Parent pursuant to Section 8.1(b)(iii) or (y) Parent pursuant to Section 8.1(d)(i), and at the time of such Company Stockholders’ Meeting in the case of termination pursuant to Section 9.1(dclause (x) or at the time of such breach in the case of clause (y), all of the conditions set forth in Section 8.1 a Competing Proposal has been publicly announced and Section 8.3 (other than Section 8.3(c)) shall have has not been satisfied or waivedwithdrawn, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into a definitive agreement within twelve (12) months providing for the consummation of a Competing Proposal and such termination to effect any Acquisition ProposalCompeting Proposal is subsequently consummated; provided, then on the date of such consummation or such entry into a definitive agreementhowever, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 9.2(b)(i8.3(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “fifteen percent (15%)” or “85%” therein in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.;
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable is terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii), then the preceding clauses Company shall (A) in the case of clause (i)) above, no later than two (2) Business Days following the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (C) in the case of this clause (iii), no later than two (2) shall Business Days after the date of such termination, pay, or cause to be paid paid, by wire transfer of immediately available funds to an account designated in writing by Parent (andfunds, notwithstanding anything herein to at the contrarydirection of Parent, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Fee; it being understood that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion.
(b) In the event that:
(i) the Agreement is terminated by the Company pursuant to Section 8.1(c)(i);
(ii) the Agreement is terminated by the Company pursuant to Section 8.1(c)(iii), then Parent shall no later than two (2) Business Days after the date of such termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of the Company, the Parent Termination Fee; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(c) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 9.9, (i) except in the case of a knowing and intentional breach of this Agreement by the Company (in which case Parent shall be entitled to seek monetary damages, recovery or award from the Company in an amount not to exceed the amount of the Termination Fee in the aggregate), Parent’s right to receive payment from the Company of the Termination Fee pursuant to Section 8.3(a), shall constitute the sole and exclusive monetary remedy of Parent and Acquisition Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to Section 8.6); provided, that, in no event shall the Company be subject to an aggregate amount for monetary damages (including any payment of the Termination Fee) in excess of an aggregate amount equal to the Termination Fee (except in all cases that the Company shall also be obligated with respect to its applicable obligations under Section 8.3(d) and Section 8.6), and (ii) except in the case of a knowing and intentional breach of this Agreement by the Equity Investor, Parent or Acquisition Sub (in which case the Company shall be entitled to seek monetary damages, recovery or award from the Equity Investor, Parent or Acquisition Sub in an amount not to exceed the amount of the Parent Termination Fee, in the aggregate), the Company’s right to receive payment from Parent of the Parent Termination Fee pursuant to Section 8.3(b), shall constitute the sole and exclusive monetary remedy of the Company against the Parent, Acquisition Sub and the Equity Investor and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Parent Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement, the Equity Commitment Letter or the Parent Guarantee to be consummated or for a breach or failure to perform the applicable provisions hereunder, and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Equity Commitment Letter or the Parent Guarantee or the transactions contemplated by thereby (except in all cases that Parent shall also be obligated with respect to its expense reimbursement and indemnification obligations contained in Section 6.11 and its applicable obligations under Section 8.3(d)(iii) and Section 8.6(b)); provided, that, in no event shall Equity Investor, Parent or Acquisition Sub collectively be subject to an aggregate amount for monetary damages (including any payment of the Parent Termination Fee) in excess of an aggregate amount equal to the Parent Termination Fee (except in all cases that Parent shall also be obligated with respect to its expense reimbursement and indemnification obligations contained in Section 6.11 and its applicable obligations under Section 8.3(d)(iii) and Section 8.6(b)). For the avoidance of doubt, any liability or obligation of the Parent, Acquisition Sub or Equity Investor hereunder shall be subject to the terms of the Equity Commitment Letter and the Parent Guarantee.
(d) Each of the parties hereto acknowledges that (i) the agreement contained in this Section 8.3 is 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 Parent and its Affiliates in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision, and (iii) without the agreement contained in this Section 8.3, the parties would not enter into this Agreement, accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying party shall pay the other party its costs and Expenses in connection with such suit, together with interest on such amount at the annual rate of five percent (5%) plus the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable law.
Appears in 1 contract
Sources: Merger Agreement (Twitter, Inc.)
Termination Fee. (a) If (i) If the Parent Corporation terminates this Agreement pursuant to the provisions of Section 8.1(c)(iii) or Section 8.1(c)(iv) and the Company enters into an agreement with respect to a Third Party Acquisition (Aas defined in Section 8.3(b)), or a Third Party Acquisition occurs within 12 months after the date of such termination, and such agreement was entered into, or such Third Party Acquisition was publicly announced, concurrently with or prior to the date of the termination of this Agreement or (ii) Parent or the Company terminates this Agreement pursuant to the provisions of Section 9.1(c8.1(e), Section 9.1(d) or Section 9.1(g)then, in each case, the Company will pay to the Parent Corporation, within one business day following the occurrence of such event (B) in the case of a termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in under clause (iii)(xi) above) or the delivery of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date notice of such termination or (y) in the case of a bona fide Acquisition Proposal described in termination under clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(eabove), then, within three a termination fee equal to $150 million (3) business days after such termination, the Company shall pay or cause to be paid to Parent the "Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h"), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated by the Parent Corporation.
(b) The term "Third Party Acquisition" as used in writing this Agreement means (i) the acquisition of the Company by merger or otherwise by any person (including for purposes of this Section 8.3(b) any "person" or "group" as defined in Section 13(d)(3) of the Securities Exchange Act) or entity other than the Parent Corporation or the Acquisition Corporation, (andii) the acquisition by any person or entity other than the Parent Corporation or the Acquisition Corporation of more than 50 percent of the -45- 52 consolidated assets (determined based on book or fair market value) of the Company and its Subsidiaries, notwithstanding anything herein to (iii) the contraryacquisition by any person or entity other than the Parent Corporation or the Acquisition Corporation of more than 50 percent of the outstanding shares of Company Common Stock, payment shall not be required prior to (iv) the designation adoption by the Company of such account any plan of liquidation or the declaration by Parent). Except in the case Company of common law fraud any extraordinary dividend or distribution (not including in any event distribution of any constructive fraud shares of the capital stock of any material Subsidiary) of cash or property constituting more than 50 percent of the consolidated assets (determined based on book or fair market value) of the Company and its Subsidiaries or (v) the purchase by the Company or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of its Subsidiaries of more than 50 percent of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the outstanding shares of Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionCommon Stock.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) Parent a Competing Proposal relating to a Competing Transaction shall have been made or proposed (and not withdrawn), after the Company terminates date hereof and prior to the Shareholders Meeting (or prior to the termination of this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(gif there has been no Shareholders Meeting), (B) following the occurrence of an event described in the case of termination preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 9.1(d8.02(a) or Section 8.02(c), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months after the termination of such termination this Agreement, any Group Company consummates, or the Company enters into a definitive agreement within twelve in connection with, a Competing Transaction, whether or not such Competing Transaction was the same Competing Transaction referred to in clause (12A) months of such termination to effect any Acquisition Proposal(provided, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 9.2(b)(iSection 8.06(a), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or in the definition of “85%Competing Transaction” therein shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(c), then the Company shall pay, or cause to be paid, to Parent or its designees an amount in cash equal to $5,164,923 (the “Company Termination Fee”) by wire transfer of same day funds as promptly as possible (but in any event (x) within five (5) Business Days after such termination in the case of a termination referred to in clause (ii) above, (y) at least two (2) Business Days prior to and as a condition of the consummation by the Company of a Competing Transaction or entry by the Company into the definitive agreement in connection with a Competing Transaction in the case of a termination referred to in clause (i) above, or (z) prior to, concurrently with or immediately after the termination of this Agreement in case of a termination pursuant to clause (iii) above); it being agreed that in no event shall the Company be required to pay the Company Termination Fee more than once.
(b) Parent will pay, or cause to be paid, to the Company or one or more of designees of the Company an amount in cash equal to $10,329,846 (the “Parent Termination Fee”) if this Agreement is terminated by the Company pursuant to Section 8.03(a) or Section 8.03(b), such payment to be made as promptly as possible (but in any event within five (5) Business Days after such termination by wire transfer of same day funds); it being agreed that in no event shall Parent be required to pay the Parent Termination Fee more than once.
(c) Except as otherwise specified in Section 8.06(d), all expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such expenses, whether or not the Merger or any other Transaction is consummated.
(d) In the event that the Company fails to pay the Company Termination Fee, or Parent fails to pay the Parent Termination Fee, when due and in accordance with the requirements of this Agreement, the Company or Parent, as the case may be, shall reimburse the other party for reasonable costs and expenses actually incurred or accrued by the other party (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.06, together with interest on such unpaid Company Termination Fee or Parent Termination Fee, as the case may be, commencing on the date that the Company Termination Fee or Parent Termination Fee, as the case may be, became due, at the prime rate as published in The Wall Street Journal on such date plus 2.00% or a lesser rate that is the maximum permitted by applicable Law. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder.
(e) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 8.06 are an integral part of the Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination Fee or Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 8.06(a) or Section 8.06(b) are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and clause (iii)(xiii) without the agreements contained in this Section 8.06, the parties hereto would not have entered into this Agreement.
(i) Subject to Section 9.08, the Commitment Letter and the Limited Guarantee, the Company’s right to (i) terminate this Agreement and receive the Parent Termination Fee pursuant to Section 8.06(b) and costs and expenses under Section 8.06(d) and the guarantee of such obligations pursuant to the Limited Guarantee (subject to their terms, conditions and limitations), and (ii) receive reimbursement and interest pursuant to Section 8.06(d) (the “Company Reimbursement”), shall be the sole and exclusive remedy of any Group Company and all members of the Company Group against (A) Parent, Merger Sub or the Guarantor, (B) the former, current and future direct or indirect holders of any equity, general or limited partnership or limited partnership or liability company interest, controlling persons, management companies, portfolio companies, incorporators, Representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of Parent, Merger Sub or the Guarantor, or (C) any former, current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interest, controlling persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of any of the foregoing (clauses (A) through (C) of such this Section 8.06(f), collectively, the “Acquisition Proposal” definition Parent Group”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement or failure to perform hereunder or other failure of the Merger or the other Transactions to be consummated. For the avoidance of doubt, subject to Section 9.08, neither Parent nor any other member of the Parent Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Commitment Letter and the Limited Guarantee) other than the payment of the Parent Termination Fee pursuant to Section 8.06(b) and the Company Reimbursement, and in no event shall any Group Company, the direct or indirect shareholders of the Company or any other Group Company, or any of their respective Affiliates, members, managers, partners, Representatives, stockholders, successors or assignees of the foregoing (collectively, the “Company Group”), seek, or permit to be sought, on behalf of any member of the Company Group, any monetary damages from any member of the Parent Group in connection with this Agreement or any of the Transactions (including the Commitment Letter and the Limited Guarantee), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.06(b) and Section 8.06(d), or the Guarantor to the extent provided in the Commitment Letter or Limited Guarantee. This provision was specifically bargained for and is intended to be for the benefit of, and shall be deemed to refer only to ▇▇▇▇-▇▇▇enforceable by, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509each member of the Parent Group.
(ii) If Parent terminates Subject to Section 9.08, Parent’s right to terminate this Agreement and receive payment from the Company of the Company Termination Fee pursuant to Section 9.1(e8.06(a) and expenses under Section 8.06(d) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any member of the Parent Group against any member of the Company Group for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement or failure to perform hereunder or other failure of the Merger to be consummated. Neither the Company nor any other member of the Company Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions other than the payment by the Company of the Company Termination Fee pursuant to Section 8.06(a) and the costs and expenses under Section 8.06(d), thenand in no event shall any of Parent, within three (3) business days after such terminationMerger Sub or any other member of the Parent Group seek, or permit to be sought, on behalf of any member of the Parent Group, any monetary damages from any member of the Company shall pay Group in connection with this Agreement or cause any of the Transactions, other than (without duplication) from the Company to the extent provided in Section 8.06(a) and Section 8.06(d). This provision was specifically bargained for and is intended to be paid to Parent for the Termination Feebenefit of, and shall be enforceable by, each member of the Company Group.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding Notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment the Commitment Letter, the Limited Guarantee or any other document contemplated thereby or any document or instrument delivered in connection hereunder or thereunder (collectively, the “Transaction Documents”), but subject to Section 9.08, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, of the Termination Fee shall constitute liquidated damagesParent Group collectively (A) under this Agreement or any other Transaction Document, and from and after such termination as described (B) in this Section 9.2(bconnection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the Committed Financing) the Company shall have no further liability to be consummated or obligations (C) in respect of any kind representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, shall not exceed under any circumstances an amount equal to the termination contemplated hereby sum of (i) the Parent Termination Fee, if any, due and owing to the Company pursuant to Section 8.06(b) and (ii) the Company Reimbursement.
(iv) Notwithstanding anything to the contrary in this Agreement or the other than as provided Transaction Documents, but subject to Section 9.08, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise, of the Company Group collectively (A) under this Section 9.2(b). For Agreement or any other Transaction Document, (B) in connection with the avoidance failure of doubtthe Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the Committed Financing) to be consummated or (C) in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction Document, in no event shall not exceed under any circumstances an amount equal to the sum of (i) the Company be obligated Termination Fee, if any, due and owing to pay the Termination Fee on more than one occasionParent pursuant to Section 8.06(a) and (ii) the amounts, if any, due and owing under Section 8.06(d).
Appears in 1 contract
Sources: Merger Agreement (Dada Nexus LTD)
Termination Fee. (a) Any provision in this Agreement to the contrary notwithstanding, if:
(i) If (A) Parent or the Company terminates shall have terminated this Agreement pursuant to Section 9.1(c8.01(d)(ii), Section 9.1(d;
(ii) Parent shall have terminated this Agreement pursuant to Sections 8.01(c)(ii) or Section 9.1(g8.01(c)(iii), ; or
(Biii) (A) in the case of a termination pursuant to Section 9.1(d8.01(b)(iii), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Company Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company is publicly proposed or publicly disclosed after the date of this Agreement and not withdrawn prior to the Company Shareholder Meeting, or in the case of a termination pursuant to Section 8.01(b)(i), a Company Acquisition Proposal has become known to, disclosed or communicated to the Company Board or the Company’s senior management prior to the Outside Date, or in the case of a termination pursuant to or Section 8.01(c)(i), a Company Acquisition Proposal has become known to, disclosed or communicated to the Company Board or the Company’s senior management prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made breach giving rise to the Company termination event pursuant to Section 8.01(c)(i), (B) this Agreement is terminated by Parent or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledgepursuant to Section 8.01(b)(i), Section 8.01(b)(iii) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, Section 8.01(c)(i) and (DC) any Acquisition Proposal is consummated concurrently with, or within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposalafter, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay have entered into a definitive agreement for a transaction that constitutes a Company Acquisition Proposal or cause to completed a transaction that constitutes a Company Acquisition Proposal (it being understood that the transaction for a Company Acquisition Proposal under clause (C) need not be paid to Parent with the Termination Fee.
(iii) If same counterparty that made the Company terminates this Agreement pursuant to Section 9.1(hAcquisition Proposal under clause (A), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), ; then the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i)pay, (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (andParent, notwithstanding anything herein the Termination Fee, such payment to be made concurrently with, and as a condition to the contraryeffectiveness of, payment shall not be required prior to the designation of such account by Parent). Except termination in the case of common law fraud clause (not including in any event any constructive fraud or any fraud that is not intentional or deliberatei) or a Willful Breachabove, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and within three (3) Business Days after such termination as described in this Section 9.2(bthe case of clause (ii) above, or within three (3) Business Days after the Company shall have no further liability or obligations last to occur of any kind the events set forth in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, clause (iii) above; it being understood that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion.
(b) Notwithstanding anything to the contrary set forth in this Agreement, except in the case of fraud or Willful Breach of any covenant or agreement of this Agreement, if Parent receives payment from the Company of the Termination Fee pursuant to Section 8.03, such payment (together with amounts owed, if any, pursuant to Section 8.03(c)) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company Related Parties for all losses and damages suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.
(c) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.03 are an integral part of the Transactions, (ii) without these agreements, the parties would not enter into this Agreement and (iii) the Termination Fee does not constitute a penalty, but rather is 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 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. Accordingly, if the Company fails to timely pay the Termination Fee pursuant to this Section 8.03 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of the Termination Fee set forth in this Section 8.03, the Company shall pay Parent its costs and expenses in connection with such suit (including reasonable attorneys’ fees), together with interest on such amount at an annual rate equal to the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.
Appears in 1 contract
Termination Fee. (a) If:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c9.1(c)(i), ;
(ii) Parent terminates this Agreement pursuant to Section 9.1(d9.1(d)(i) or Section 9.1(g9.1(d)(ii), ; or
(Biii) in prior to the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 Acceptance Time (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (xA) a bona fide written Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company Board of Directors or any Person shall have publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) announced a bona fide Acquisition Proposal described in clause (iii)(xsuch Acquisition Proposal, the “Outstanding Proposal”), and (B) of following the definition of such term shall have been made to Outstanding Proposal, the Company or shall have been publicly disclosed Parent terminates this Agreement pursuant to (and in x) Section 9.1(b)(i) or (ii) solely due to a failure of the Minimum Tender Condition on the Expiration Date or (y) Section 9.1(d)(iii) either such event, with respect to which any director, officer as a result of a breach of a covenant or employee at the level of Senior Director or above agreement of the Company has actual knowledge) after the date of set forth in this Agreement and not withdrawn or expressly rejected by as a result of a willful material breach of a representation or warranty of the Company prior set forth in this Agreement; provided, however, that no Termination Fee shall be payable to the date of such termination, Parent pursuant to this Section 9.3(a)(iii) unless and (D) any Acquisition Proposal is consummated until within twelve (12) months of after such termination or the Company enters or any of its Subsidiaries shall have entered into a definitive agreement within twelve an Alternative Acquisition Agreement with respect to, or consummated, the Outstanding Proposal or another Acquisition Proposal (12) months in each case in this proviso, substituting “50%” for “15%” in the definition of such termination to effect any Acquisition Proposal, including as used in the definition of Outstanding Proposal). then on the date of such consummation or such entry into a definitive agreement, the Company shall pay Parent a termination fee of $15,496,000 in cash 19,600,000 (the “Termination Fee”). Solely for purposes , payable by wire transfer of this Section 9.2(b)(isame day funds (x) concurrently with such termination, in the case of clause (i), (y) within five (5) Business Days after the term “Acquisition Proposal” shall have termination, in the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and case of clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement and (z) upon the earlier of entry into the definitive agreement with respect to, or consummation of, the Outstanding Proposal or another Acquisition Proposal, in the case of clause (iii); provided, however, that the Company shall be relieved of its obligation to pay the Termination Fee pursuant to clause (i) or clause (ii) above if, prior to a termination pursuant to Section 9.1(e)9.1(c)(i) or prior to the Change of Recommendation, thena Divestiture Request shall have been made, and Parent shall not have complied with, or offered to comply with, such Divestiture Request within three (3) business days Business Days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement written request by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable but such request by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall may not be required prior delivered before the eighth (8) day after the Parent has received the Divestiture Request under Section 9.2(d)(iv)) to comply with such requirement or request by the designation of such account by Parent). Except relevant Governmental Entity (the parties acknowledge and agree that in the case event the Company is relieved of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else its obligation to the contrary in this Agreement, payment of pay the Termination Fee pursuant to this proviso, Parent shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations be relieved of any kind in connection with this Agreement or obligation to pay the termination contemplated hereby other than as provided under this Section 9.2(bParent Termination Fee). For the avoidance of doubt, in In no event shall the Company be obligated required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement (including Section 10.5), each of Parent and Merger Sub acknowledges and agrees on behalf of itself and its Affiliates that if the Termination Fee becomes payable and is paid by the Company pursuant to this Section 9.3, the right to receive the Termination Fee shall constitute each of Parent’s and Merger Sub’s and each of their Affiliates’ and Representatives’ sole and exclusive remedy under this Agreement.
(b) If:
(i) Parent terminates this Agreement pursuant to Section 9.1(d)(iv); or
(ii) Either Parent or the Company terminates this Agreement pursuant to:
(A) Section 9.1(b)(i) or Section 9.1(b)(ii), provided that (x) at the time of such termination all of the conditions set forth on Exhibit A shall have been satisfied except that the condition(s) set forth in clause (a) (with respect to matters under the Antitrust Laws), (b) (with respect to matters under the Antitrust Laws) and/or (f) on Exhibit A shall not have been satisfied and the Minimum Condition and the condition set forth in clause (e) may not have been satisfied, (y) prior to such termination, a Divestiture Request shall have been made and Parent shall not have complied with such Divestiture Request, and (z) as of such date it is reasonably likely that the Minimum Tender Condition and the condition set forth in clause (e) would be satisfied if the Offer were to be consummated on such date; or
(B) Section 9.1(b)(iii) solely as a result of any Law which has the effect of resulting in a Divestiture Condition and/or any final and non-appealable Order resulting in a Divestiture Condition and, prior to such termination, a Divestiture Request shall have been made and Parent shall not have complied with such Divestiture Request, and at the time of any termination pursuant to clause (i) or clause (ii) above, the condition set forth in clause (d) on Exhibit A shall have been satisfied, then Parent shall pay the Company a termination fee of $19,600,000 (the “Parent Termination Fee”), payable by wire transfer of same day funds (x) prior to or concurrently with such termination, in the case of clause (i), and (y) within five (5) Business Days after the termination, in the case of clause (ii). In no event shall Parent be required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement (including Section 10.5), the Company acknowledges and agrees on behalf of itself, its shareholders and its Affiliates that if the Parent Termination Fee becomes payable and is paid by Parent pursuant to this Section 9.3, the right to receive the Parent Termination Fee shall constitute the Company’s and its Affiliates’ and Representatives’ sole and exclusive remedy under this Agreement.
(c) The parties acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, none of the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If this Agreement is terminated (A) Parent or by the Company terminates or Parent pursuant to Section 7.01(b)(i) (provided that (x) at the time of any such termination, the conditions to the Offer set forth in clauses (b), (c) and (d) of Annex I are satisfied and the Minimum Condition is not satisfied, and (y) with respect to any such termination by the Company, the right to terminate this Agreement pursuant to Section 9.1(c), Section 9.1(d7.01(b)(i) is then available to Parent) or by Parent pursuant to Section 9.1(g)7.01(c)(i) resulting from a Willful and Material Breach of this Agreement by the Company, (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) a bona fide Takeover Proposal shall have been satisfied publicly made or waived, otherwise communicated or delivered to the Company’s Board of Directors and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or become publicly disclosed known after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition termination, and such Takeover Proposal described in clause (iii)(x) of the definition of such term shall not have been made to the Company or shall have been publicly disclosed (and irrevocably withdrawn in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company good faith prior to the date of such termination, and (DC) any Acquisition Proposal is consummated within twelve (12) months of such termination or the date this Agreement is so terminated, the Company (1) enters into a definitive agreement within twelve Company Acquisition Agreement with any Person or Persons with respect to any Takeover Proposal and such Takeover Proposal is subsequently consummated or (122) months of such termination to effect consummates any Acquisition Takeover Proposal; provided that, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of clauses (B) and (C) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e), then, within three 7.01(c)(ii) or (3B) business days after such termination, by the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h7.01(d)(ii), ; then, concurrently with in any such termination event under clause (i) or (ii) of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.03(a), the Company shall pay or cause to be paid the Company Termination Fee to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid its designee by wire transfer of immediately available same day funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 7.03(a)(ii)(A), within two (not including in any event any constructive fraud or any fraud that is not intentional or deliberate2) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and Business Days after such termination, (y) in the case of Section 7.03(a)(ii)(B), substantially concurrently with such termination as described or (z) in this the case of Section 9.2(b7.03(a)(i), within two (2) Business Days after the Company shall have no further liability or obligations of any kind in connection with this Agreement or consummation of, the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Takeover Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay the applicable Company Termination Fee on more than one occasion. In the event that Parent shall become entitled to and receive payment of the Company Termination Fee, the receipt of the Company Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub or any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated by this Agreement (and the abandonment thereof) or any matter forming the basis for such termination, and the Company shall have no further liability, whether pursuant to a claim in law or in equity, to Parent, Merger Sub or any of their respective Affiliates or any other Person, and none of Parent, Merger Sub or any of their respective Affiliates or any other Person shall be entitled to bring or maintain any Action against the Company or any of its Subsidiaries or Affiliates for damages or any equitable relief arising out of or in connection with this Agreement, any of the transactions contemplated by this Agreement, or any matters forming the basis for such termination; provided that nothing in this Section 7.03 shall relieve the Company from liability for damages arising from a Willful and Material Breach of this Agreement or from fraud.
Appears in 1 contract
Sources: Merger Agreement (MyoKardia, Inc.)
Termination Fee. (i) If In the event that:
(A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 9.1(c8.1(f), Section 9.1(d) or Section 9.1(g), ; or
(B) this Agreement is terminated by Parent pursuant to Section 8.1(e). then in the case of (A) or (B) above, the Company shall promptly, but in no event later than the date of the earliest such event, pay to Parent a fee equal to Five Million Nine Hundred Eighty-Two Thousand Dollars ($5,982,000)(the “Company Termination Fee”), payable by wire transfer of same day funds; provided, however, that, in the case of any termination pursuant to Section 9.1(d8.1(f), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein Fee shall be deemed to be references to “50%”payable prior to, and clause (iii)(x) of as a condition to, such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509termination.
(ii) If Parent terminates In the event that this Agreement is terminated by Parent pursuant to Section 9.1(e8.1(g), thenParent shall promptly, within three but in no event later than the date of the earliest such event, pay to the Company a fee equal to Five Million Nine Hundred Eighty-Two Thousand Dollars (3$5,982,000) business days after (the “Parent Termination Fee”), payable by wire transfer of same day funds; provided, however, that, in the case of any termination pursuant to Section 8.1(g), the Parent Termination Fee shall be payable prior to, and as a condition to, such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If Each of the Company terminates and Parent acknowledges that the agreements contained in this Agreement Section 8.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, each Party would not enter into this Agreement. Accordingly, if the Company or Parent fails promptly to make a payment due pursuant to this Section 9.1(h8.3(b), thenand, concurrently in order to obtain such payment, Parent or Merger Sub on the one hand, or the Company on the other hand, commences a suit that results in a judgment against the other Party, such other Party shall pay to Parent and Merger Sub or the Company, as applicable, their reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such termination of this Agreement by suit, together with interest on the Company as amount set forth in this Section 9.1(h8.3(b) at the publicly announced prime rate of Bank of America, N.A. plus two percent (or2.0%) per annum, if latercompounded quarterly, promptly following from the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause date such payment was required to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent)paid. Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment Payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as fees described in this Section 9.2(b8.3(b) shall not be in lieu of damages incurred in the Company shall have no further liability or obligations event of any kind in connection with a breach of this Agreement or the termination contemplated hereby other than as provided under this described in Section 9.2(b)8.2. For the avoidance of doubt, in In no event shall the Company be obligated to pay the Termination Fee on more than one occasionCompany Termination Fee or Parent Termination Fee be payable hereunder.
Appears in 1 contract
Termination Fee. (a) If (i) If (A) this Agreement is validly terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g7.1(e), (ii) neither Parent nor Acquisition Sub shall have materially breached any of its representations, warranties or covenants under this Agreement, (iii) at or prior to the time of the termination of this Agreement a Third Party shall have publicly disclosed an Alternative Acquisition Proposal (and such Alternative Acquisition Proposal shall not have been withdrawn prior to the time of the termination of this Agreement), (iv) immediately prior to the termination of this Agreement (A) the number of Company Shares tendered (and not validly withdrawn) pursuant to the Offer shall not have satisfied the Minimum Condition, and (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 Offer Conditions (other than Section 8.3(c)the Minimum Condition) shall have been satisfied or waivedand shall continue to be satisfied, and (Cv) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed within one year after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationAgreement, and (DA) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive acquisition agreement within twelve with a Third Party providing for an Alternative Acquisition (12which is ultimately consummated) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, (B) the Company shall pay consummates an Alternative Acquisition with a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e)Third Party, then, within three (3) two business days after such terminationAlternative Acquisition is consummated, the Company shall pay or cause to be paid to Parent Parent, in cash, a termination fee in the Termination Feeamount of $17,300,000 (the "Fee Amount"); provided, however, that for all purposes of this Section 7.3(a), all references to "20%" in the definition of "Alternative Acquisition" shall be deemed to refer to "50%" instead.
(iiib) If (i) this Agreement is validly terminated pursuant to Section 7.1(f) and (ii) neither Parent nor Acquisition Sub shall have materially breached any of its representations, warranties or covenants under this Agreement, then as promptly as practicable and in any event no later than two business days after the Company terminates termination of this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.1(f), the Company shall pay or cause to be paid to Parent Parent, in cash, a termination fee in the Termination Feeamount of the Fee Amount.
(ivc) Any amount payable by the Company If this Agreement is validly terminated pursuant to the preceding clauses (iSection 7.1(k), (ii) or (iii) shall be paid by wire transfer then concurrently with the termination of immediately available funds this Agreement pursuant to an account designated in writing by Parent (andSection 7.1(k), notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability pay or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubtcause to be paid to Parent, in no event shall cash, a termination fee in the Company be obligated to pay amount of the Termination Fee on more than one occasionAmount.
Appears in 1 contract
Termination Fee. (ia) If (APurchaser terminates this Agreement pursuant to Section 7.1(c)(ii) Parent or the Company terminates this Agreement pursuant to Section 9.1(c7.1(d)(ii), then the Company shall 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 9.1(d7.1(c)(ii)(B) or Section 9.1(g), (B7.1(d)(ii) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) either (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination occurs on or before the No-Shop Period Start Date, or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination with an Excluded Party with respect to effect any Acquisition Proposala Superior Proposal in accordance with Section 5.2 on or before the Company Shareholder Approval is obtained, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i)pay, the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed cause to be references paid, to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed Parent an amount equal to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509$1,079,862.
(iib) If Parent (i) Purchaser terminates this Agreement pursuant to Section 9.1(e), then, within three (37.1(c)(i) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If Purchaser or the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i7.1(b)(iii), (ii) 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, the Company enters into a definitive agreement with respect to or otherwise consummates any Acquisition Proposal, then the Company shall pay to Parent (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 Section 5.2(c), except that all references to twenty percent (20%) shall be paid by wire transfer of immediately available funds changed to an account designated in writing by fifty percent (50%).
(c) If Purchaser terminates this Agreement pursuant to Section 7.1(c)(i) or Purchaser or the Company terminates this Agreement pursuant to Section 7.1(b)(iii), then the Company shall reimburse Parent (andor its designee) for any Expenses incurred by or on behalf of the Purchaser Entities or any of their Affiliates, notwithstanding anything herein in an aggregate amount not to exceed $500,000 (“Expense Reimbursement”), no later than two (2) Business Days after the contrary, payment date of such termination.
(d) The parties agree and understand that in no event shall not the Company be required prior to pay any termination fee pursuant to this Section 7.3 (any such amount, the designation of such account by Parent)“Termination Fee”) on more than one occasion. Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding Notwithstanding anything else to the contrary in this Agreement, payment of (i) if Parent (or its designee) receives the Termination Fee and/or Expense Reimbursement from the Company pursuant to this Section 7.3, such payment shall constitute liquidated damagesbe 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 from 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 after thereafter Parent (or its designee) is entitled to receive the Termination Fee under this Section 7.3, the amount of such termination as described Termination Fee shall be reduced by the aggregate amount of such Expense Reimbursement. The parties acknowledge that the agreements contained in this Section 9.2(b) 7.3 are an integral part of the Company shall have no further liability or obligations of Transactions, and that, without these agreements, the parties would not enter into the Transaction Agreements, and that any kind in connection with this Agreement or the termination contemplated hereby other than as provided under amounts payable pursuant to this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion7.3 do not constitute a penalty.
Appears in 1 contract
Sources: Merger Agreement (Alexanders J Corp)
Termination Fee. (a) In the event that:
(i) If 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 (A) Parent or at the time of such termination the Company terminates shall not have been entitled to terminate this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g7.01(d)(iii), (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, in the case of termination pursuant to Section 9.1(dboth clauses (1) and (2), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement Agreement, and not withdrawn withdrawn, or in the event of a termination pursuant to Section 7.01(b)(iii), not publicly withdrawn, at least three Business Days prior to the date of such termination or Company Stockholders’ Meeting and (yC) a bona fide Acquisition Proposal described in clause (iii)(x) within 9 months of the definition of such term shall have been made to date this Agreement is terminated, the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge1) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve with respect to a Takeover Proposal and such Takeover Proposal is subsequently consummated (12) months regardless of such termination to effect any Acquisition Proposal, then on the date of whether such consummation occurs within the 9 month period) or such entry into (2) consummates a definitive agreementTakeover Proposal; provided, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that, for purposes of clauses (B) and (C) of this Section 9.2(b)(i7.03(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “1520%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.; or
(ii) If Parent terminates this Agreement is terminated (A) by Parent pursuant to Section 9.1(e), then, within three 7.01(c)(ii) (3Adverse Recommendation Change) business days after such termination, or (B) by the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h7.01(d)(ii) (entry into a Company Acquisition Agreement), ; then, concurrently with in any such termination event under clause (i) or (ii) of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.03(a), the Company shall pay or cause to be paid the applicable Company Termination Fee to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available same‑day funds to an account designated by Parent in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except x) in the case of common law fraud Section 7.03(a)(ii)(A), within five Business Days after such termination, (not including y) in any event any constructive fraud the case of Section 7.03(a)(ii)(B), simultaneously with such termination or any fraud that is not intentional or deliberate(z) or a Willful Breachin the case of Section 7.03(a)(i), notwithstanding anything else to within two Business Days after the contrary in this Agreement, payment consummation of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, Takeover Proposal referred to therein; it being understood that in no event shall the Company be obligated required to pay or cause to be paid the applicable Company Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Clearwater Analytics Holdings, Inc.)
Termination Fee. (a) In the event that:
(i) If (A) Parent a Takeover Proposal shall have been made directly to the Company Board or the Company terminates this Agreement pursuant Company’s stockholders, any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to Section 9.1(c)make such a Takeover Proposal or such a Takeover Proposal otherwise becomes publicly known, Section 9.1(d) or Section 9.1(g)and thereafter, (B) in this Agreement is terminated by the case of termination Company or Parent pursuant to Section 9.1(d), all of the conditions set forth in 8.1(b)(ii) or Section 8.1 and Section 8.3 (other than Section 8.3(c)8.1(b)(iii) shall have been satisfied or waived, and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Takeover Proposal within twelve (x12) months of the date this Agreement is terminated;
(ii) (A) a bona fide Acquisition Takeover Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company Board or the Company’s stockholders, any Person shall have publicly disclosed after the date of announced an intention (whether or not conditional or withdrawn) to make such a Takeover Proposal or such a Takeover Proposal otherwise becomes publicly known, and thereafter, (B) this Agreement is terminated by the Parent pursuant to Section 8.1(d)(ii) or Section 8.1(d)(iii) and not withdrawn prior to the date of such termination or (yC) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, enters into a definitive agreement with respect to which to, or consummates, a transaction contemplated by any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Takeover Proposal is consummated within twelve (12) months of such termination or the date this Agreement is terminated;
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(d)(i); or
(iv) this Agreement is terminated by the Company enters into a definitive agreement within twelve pursuant to Section 8.1(c)(ii); then in any such event under clauses (12i), (ii), (iii) months or (iv) of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreementthis Section 8.3(a), the Company shall pay to Parent a termination fee of $15,496,000 16,172,214 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If this Agreement is terminated by the Company pursuant to Section 7.1(d)(i);
(ii) (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Takeover Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made known to the Company or shall have been made directly to its stockholders generally or any Person shall have publicly disclosed announced an intention (whether or not conditional or withdrawn) to make a Takeover Proposal and in either such eventthereafter, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge(B) after the date of this Agreement is terminated by Parent pursuant to Section 7.1(c)(i) and not withdrawn the Company’s breach or expressly rejected by the Company prior to the date of such terminationfailure triggering termination shall have been willful, and (DC) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Acquisition Takeover Proposal is consummated within twelve (12) months of such termination or the date this Agreement is terminated; provided, that for purposes of this Section 7.3(a)(ii), all references to 15% in the definition of “Takeover Proposal” shall be deemed to be 50%;
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii); or
(iv) this Agreement is terminated by either the Company enters into a definitive agreement within twelve or Parent pursuant to Section 7.1(b)(iii); then in any such event under clause (12i), (ii), (iii) months or (iv) of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreementthis Section 7.3(a), the Company shall pay to Parent a termination fee of $15,496,000 21,300,000 in cash (the “Termination Fee”“). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(iib) If Parent terminates In the event that this Agreement is terminated by Parent or the Company pursuant to Section 9.1(e7.1(b)(iv), then, within three (3) business days after such termination, Parent shall pay to the Company shall pay or cause to be paid to Parent $5 million in cash in satisfaction of all expenses and other costs, including opportunity costs, incurred in connection with the Termination Fee.transactions contemplated hereby;
(iiic) If In the Company terminates event that this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable is terminated by the Company pursuant to Section 7.1(d)(ii), then Parent shall pay to the preceding clauses Company, in cash, all reasonable out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, financial advisors and investment bankers), up to $1,000,000, incurred in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement or the transactions contemplated hereby.
(d) In the event that this Agreement is terminated by Parent pursuant to Section 7.1(c)(i), then the Company shall pay to Parent, in cash, all reasonable out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, financial advisors and investment bankers), up to $1,000,000, incurred in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement or the transactions contemplated hereby.
(e) Any payment required to be made pursuant to clause (i) of Section 7.3(a) shall be made to Parent in accordance with Section 7.1(d)(i), ; any payment required to be made pursuant to clause (ii) of Section 7.3(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal (and in any event no later than two (2) Business Days after delivery to the Company of notice of demand for payment); and any payments required to be made pursuant to clauses (iii) or (iv) of Section 7.3(a) shall be paid made to Parent promptly following termination of this Agreement (and in any event no 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 in writing by Parent (and, notwithstanding anything herein Parent. Any payment required to be made pursuant to Section 7.3(b) shall be made to the contrary, payment shall not be required prior to Company promptly following the designation termination of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment . All such payments shall be made by wire transfer of immediately available funds to an account to be designated by the Termination Fee Company.
(f) In the event that a party shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated fail to pay the Termination Fee required pursuant to this Section 7.3 when due, such fee shall accrue interest for the period commencing on more than one occasionthe date such fee became past due, at a rate equal to the rate of interest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank’s Prime Lending Rate plus 2%. In addition, if a party shall fail to pay such fee when due, such party shall also pay all of the other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee. The parties acknowledge that the Termination Fee and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, the parties would not enter into this Agreement.
Appears in 1 contract
Termination Fee. (a) If: (i) If (A) this Agreement is validly terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d7.1(b) or Section 9.1(g7.1(d), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after following the date of this Agreement and prior to the time of the termination of this Agreement, an Acquisition Proposal shall have been publicly announced (and such Acquisition Proposal shall not have been withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) time of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date termination of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such terminationAgreement), and (DC) any the Company consummates a Specified Acquisition Proposal is consummated Transaction within twelve (12) 12 months of after such termination or the Company enters into a definitive agreement within twelve (12) 12 months of after such termination to effect any providing for a Specified Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except Transaction that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
is subsequently consummated; (ii) If Parent terminates this Agreement is terminated by Parent pursuant to Section 9.1(e7.1(e); or (iii) this Agreement is terminated by the Company pursuant to Section 7.1(f), then, within three then in the case of each of clauses “(3) business days after such termination, i)” through “(iii),” the Company shall pay or cause to be paid to Parent Parent, in cash at the time specified in the next sentence, a termination fee in the amount of $16,500,000 (the “Company Termination Fee”). Any Company Termination Fee shall be paid by the Company: (1) in the case of clause “(i)” of the preceding sentence of this Section 7.3(a), within two business days after the consummation of the Specified Acquisition Transaction; (2) in the case of clause “(ii)” of the preceding sentence of this Section 7.3(a), within two business days following termination of this Agreement; and (3) in the case of clause “(iii)” of the preceding sentence of this Section 7.3(a), concurrently with a termination of this Agreement under Section 7.1(f).
(iiib) If (i) this Agreement is validly terminated by the Company terminates this Agreement pursuant to Section 9.1(h7.1(j), thenor (ii) this Agreement is validly terminated by Parent or the Company pursuant to Section 7.1(b) and at such time the Expiration Time has been extended beyond the End Date pursuant to Section 1.1(d)(iv), concurrently with such then Parent shall pay to the Company a termination fee in the amount of $25,000,000 (the “Parent Termination Fee”), in the case of a termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.1(j), within two business days following the Company shall pay or cause termination of this Agreement, and in the case of a termination of this Agreement by Parent pursuant to be paid to Parent the Termination FeeSection 7.1(b), concurrently with such termination.
(ivc) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iiiTermination Fee due under Section 7.3(a) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent. Any Parent Termination Fee due under Section 7.3(b) shall be paid by wire transfer of immediately available funds to an account designated in writing by the Company. For the avoidance of doubt: (andi) the Company Termination Fee shall be payable only once and not in duplication even though the Company Termination Fee may be payable under one or more provisions hereof; and (ii) the Parent Termination Fee shall be payable only once and not in duplication even though the Parent Termination Fee may be payable under one or more provisions hereof. Each of the parties acknowledges and agrees that neither the Parent Termination Fee nor the Company Termination Fee shall constitute a penalty but instead is liquidated damages in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, notwithstanding anything herein which amount would otherwise be impossible to calculate with precision (it being understood that nothing in this sentence shall limit the Company’s or Parent’s rights in the event of an intentional and material breach). If the Company fails to pay the Company Termination Fee when due or if Parent fails to pay the Parent Termination Fee when due, then the party that has failed to pay such amount shall also be required to pay to the contraryother party 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 or the Company, payment shall not be required prior as applicable) at a rate per annum equal to the designation of such account by Parent). Except “prime rate” (as published in the case Wall Street Journal) in effect on the date such amount was originally required to be paid (any such interest payment, an “Interest Payment”).
(d) While each of common law fraud the Company and Parent may pursue both a grant of specific performance in accordance with Section 8.13 and the payment of the Parent Termination Fee or the Company Termination Fee, as applicable, under no circumstances shall the Company or Parent be permitted or entitled to receive both a grant of specific performance that results in the Acceptance Time or the Effective Time occurring and the Parent Termination Fee or the Company Termination Fee, as applicable.
(not including in any event any constructive fraud or any fraud that is not intentional or deliberatee) or a Willful Breach, notwithstanding Notwithstanding anything else to the contrary in this Agreement, payment but subject to Section 5.14(c), if Parent or Acquisition Sub breaches this Agreement (whether such breach is intentional and material, unintentional, willful or otherwise) or fails to perform any of its covenants, obligations or agreements hereunder (whether such failure is intentional and material, unintentional, willful or otherwise), the Company’s right to: (i) obtain an injunction, specific performance or other equitable relief in accordance with the terms and limitations of Section 8.13; or (ii) terminate this Agreement and: (A) receive the Parent Termination Fee in the circumstances under which such fee is payable pursuant to Section 7.3(b) (and any related Interest Payment); or (B) in any circumstance under which the Parent Termination Fee is not payable pursuant to Section 7.3(b), seek money damages from Parent in the event of Parent’s or Acquisition Sub’s intentional and material breach of any of their representations, warranties, covenants, obligations or agreements contained in this Agreement, shall be the sole and exclusive remedies (whether such remedies are sought in equity or at law, in contract, in tort or otherwise) of the Termination Fee shall constitute liquidated Company and the Company Related Parties against the Parent Related Parties or the Lender Related Parties for any losses, damages, and from and after such termination as described costs, expenses, obligations or liabilities arising out of or related to this Agreement (or any breach of any representation, warranty, covenant, obligation or agreement contained in this Section 9.2(bAgreement), the transactions contemplated by this Agreement (or any failure of such transactions to be consummated), the Debt Commitment Letter and the financings contemplated therein (or any failure of such financings to be consummated) or in respect of any oral representations made or alleged to be made in connection with this Agreement, the transactions contemplated by this Agreement, the Debt Commitment Letter or the transactions contemplated therein. In no event shall: (1) the Company shall have no further liability or obligations any other Company Related Party seek, directly or indirectly, to recover against any Parent Related Parties (other than Parent and Acquisition Sub) or Lender Related Parties, compel payment by any Parent Related Parties (other than Parent and Acquisition Sub) or Lender Related Parties of, any damages or other payments whatsoever or bring against any Parent Related Parties (other than Parent and Acquisition Sub) or Lender Related Parties any actions, claims or causes of action (whether such remedies are sought in equity or at law, in contract, in tort or otherwise), in each case in this clause “(1)” arising out of or related to this Agreement (or any breach of any kind representation, warranty, covenant, agreement or obligation contained herein), the transactions contemplated by this Agreement (or any failure of such transactions to be consummated), the Debt Commitment Letter and the financings contemplated therein (or any failure of such financings to be consummated), or in respect of any oral representations made or alleged to be made in connection with this Agreement or the termination contemplated hereby Debt Commitment Letter; or (2) Parent, Acquisition Sub or any other Parent Related Party seek, directly or indirectly, to recover against any Company Related Party (other than as provided under this Section 9.2(bthe Company). For , compel payment by any Company Related Party (other than the avoidance Company) of, any damages or other payments whatsoever or bring against any Company Related Party (other than the Company) any action, claim or cause of doubtaction (whether any such remedy is sought in equity or at law, in no event shall contract, in tort or otherwise), in each case in this clause “(2)” arising out of or related to this Agreement (or any breach of any representation, warranty, covenant, agreement or obligation contained herein), the Company transactions contemplated by this Agreement (or any failure of such transactions to be obligated consummated), the Debt Commitment Letter and the financings contemplated therein (or any failure of such financings to pay be consummated), or in respect of any oral representations made or alleged to be made in connection with this Agreement or the Termination Fee on more than one occasionDebt Commitment Letter.
Appears in 1 contract
Sources: Merger Agreement (Xenoport Inc)
Termination Fee. (ia) If In the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii) the Company shall pay or cause to be paid as directed by Parent the Termination Fee immediately prior to and as a condition to such termination of this Agreement;
(Ab) In the event that this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii) (or by Parent or the Company terminates pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) or by Parent pursuant to Section 7.1(c)(i) following any time at which Parent was entitled to terminate this Agreement pursuant to Section 9.1(c7.1(c)(ii), the Company shall pay or cause to be paid as directed by Parent the Termination Fee within two (2) Business Days of such termination.
(c) In the event that (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(d7.1(b)(i) or Section 9.1(g7.1(b)(iii), or by Parent pursuant to Section 7.1(c)(i) and (Bii) a bona fide Takeover Proposal shall have been publicly disclosed or otherwise communicated to the Company Board or the Company’s stockholders after the date hereof and not publicly withdrawn (x) in the case of termination pursuant to Section 9.1(d7.1(b)(i) or Section 7.1(c)(i), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, or (y) in the case of termination pursuant to Section 7.1(b)(iii), prior to the date of the Company Stockholders Meeting, then, (A) within two (2) Business Days of such termination, the Company shall reimburse Parent for all documented out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, experts, consultants and the costs of all filing fees and printing costs) incurred by Parent or its Affiliates in connection with this Agreement or the Transactions; provided that the Company’s maximum aggregate reimbursement obligation pursuant to this clause (A) shall be $3,000,000 and (DB) any Acquisition Proposal is consummated if, within twelve (12) months of such termination or the date this Agreement is terminated, the Company or any of its Subsidiaries enters into a definitive agreement within twelve with respect to, recommends to its stockholders or consummates a Takeover Proposal (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely provided that for purposes of clause (iii) of this Section 9.2(b)(i7.3(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein in the definition of Takeover Proposal shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, then the Company shall pay or cause to be paid to Parent as directed by Parent, concurrently with the occurrence of the applicable event described in this clause (B) of this Section 7.3(c), the Termination Fee.
(iiid) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination For purposes of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the “Termination Fee Fee” shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated mean an amount equal to pay the Termination Fee on more than one occasion$41,000,000.
Appears in 1 contract
Termination Fee. (a) In the event that this Agreement is terminated by:
(i) If the Company pursuant to Section 7.1(e)(ii);
(ii) Parent pursuant to Section 7.1(d); or
(iii) by the Company or Parent pursuant to Section 7.1(b)(iii) if, prior to the Company Stockholders Meeting: (A) Parent a Takeover Proposal shall have been publicly disclosed, announced, commenced, submitted or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), made; (B) such Takeover Proposal shall not have been withdrawn at least five days prior to the Company Stockholders Meeting; and (C) within 180 days after the date of the termination of this Agreement, the Company and the Person who had commenced, submitted or made such Takeover Proposal consummate an Acquisition Transaction, then, in the case of clause “(i)” and clause “(ii)” of this sentence, at the time of termination pursuant to Section 9.1(dor, in the case of clause “(iii)” of this sentence, all at the time of consummation of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described Transaction referred to in clause ‘‘(iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date iii)” of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreementsentence, the Company shall pay to Parent, a fee of $15,496,000 2,800,000, in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement reduced by any amounts payable pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv7.3(b)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) . Such payment shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent.
(b) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iii), the Company shall reimburse Parent for reasonable, documented, out-of-pocket Expenses incurred by Parent (and, notwithstanding anything herein and Merger Sub in an amount not to the contrary, exceed $500,000. Such payment shall not be required prior made by wire transfer of immediately available funds to an account to be designated by Parent within 10 business days of the designation Company’s receipt of adequate documentation of the amount of such account by Parent). Except in the case Expenses.
(c) For purposes of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment an “Acquisition Transaction” means any transaction or series of transactions involving: (A) an acquisition (whether in a single transaction or a series of related transactions) of assets of the Termination Fee shall constitute liquidated damages, Company and from and after such termination as described in this Section 9.2(b) its Subsidiaries having a fair market value equal to 50% or more of the consolidated assets of the Company shall have no further liability and its Subsidiaries, taken as a whole; (B) a direct or obligations indirect acquisition (whether in a single transaction or a series of related transactions) of 50% or more of the voting power of the Company; (C) a tender offer or exchange offer that if consummated would result in any Person beneficially owning 50% or more of the voting power of the Company; or (D) a merger, consolidation, share exchange, business combination, recapitalization or similar transaction involving the Company or involving any Subsidiary (or Subsidiaries) (other than: (1) mergers, consolidations, business combinations or similar transactions involving solely the Company and/or one or more Subsidiaries of the Company; and (2) mergers, consolidations, business combinations or similar transactions that if consummated would result in a Person beneficially owning not more than 50% of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance class of doubt, in no event shall equity securities of the Company be obligated to pay the Termination Fee on more than one occasionor any of its Subsidiaries.
Appears in 1 contract
Termination Fee. (ia) If (A) Parent or the Company terminates Notwithstanding any other provision of this Agreement, if this Agreement is terminated pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case either of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposal, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (iSections 10.1(e)(i), (ii) or 10.1(f), then the Company shall immediately pay to MergerSub a break-up fee of $11,000,000 (iiithe "Termination Fee"). In addition, (i) shall be paid by wire transfer of immediately available funds if this Agreement is terminated pursuant to an account designated Section 10.1(e)(iv) or 10.1(g) then in writing by Parent (andthe event that, notwithstanding anything herein to after the contrary, payment shall not be required date hereof and prior to such termination, either (A) a Third Party Acquisition occurs, or (B) any Third Party shall have made, proposed, communicated or disclosed an intention to make a proposal with respect to a Third Party Acquisition then the designation Company shall immediately pay to MergerSub the Termination Fee; or (ii) if this Agreement is terminated pursuant to Section 10.1(e)(iii) and within eighteen (18) months following the termination of such account by Parent). Except in this Agreement (A) a Third Party Acquisition occurs or (B) the case of common law fraud (not including in any event any constructive fraud Company or any fraud that is not intentional or deliberateof its Subsidiaries shall have entered into a definitive agreement with respect to a Third Party Acquisition, then the Company shall immediately pay to MergerSub the Termination Fee upon the first to occur of any of the events specified in clause (A) or a Willful Breach(B) of this clause (ii).
(b) The Company shall pay, notwithstanding anything else or reimburse MergerSub, within two Business Days of submission of one or more statements therefor, accompanied by reasonable supporting documentation, for the amount of all out of pocket costs, fees and expenses reasonably incurred by any of them or on their behalf arising out of, in connection with, or related to the contrary in this Agreement, payment the Merger and the consummation of all transactions contemplated by this Agreement (including, without limitation, HSR Act and other filing fees, fees and expenses of printers, accountants, financial advisors, attorneys, consultants and appraisers, or any Person providing or proposing to provide any portion of the Termination Fee shall constitute liquidated damagesFinancing, as well as commitment and from other fees, charges and after expenses of any such termination as described in Person) (the "Expenses"); if this Agreement is terminated by MergerSub pursuant to Section 10.1(c), PROVIDED, THAT, the Company's aggregate payments and reimbursements pursuant to this Section 9.2(b10.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionexceed $3,000,000.
Appears in 1 contract
Termination Fee. (i) If this Agreement is terminated (A) by Parent pursuant to Section 10.01(c)(i) (Adverse Recommendation Change) or (B) by the Company pursuant to Section 10.01(d)(i) (Superior Proposal), then the Company shall pay to Parent in immediately available funds $50,245,503.85 (the “Company Termination Fee”), in the case of a termination pursuant to the foregoing clause (A), within one (1) Business Day after such termination and, in the case of a termination pursuant to the foregoing clause (B), immediately before and as a condition to such termination (it being understood and agreed that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion).
(ii) If (A) this Agreement is terminated by Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d10.01(b)(i) (End Date) or Section 9.1(g)10.01(b)(iii) (Company No Vote) or by Parent pursuant to Section 10.01(c)(ii) (Company Breach) by reason of an intentional breach of Section 6.03 by the Company, (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn prior to such termination (in the case of a termination pursuant to Section 10.01(b)(i) (End Date) or expressly rejected by Section 10.01(c)(ii) (Company Breach)) or the date of the Company prior Meeting (in the case of a termination pursuant to Section 10.01(b)(iii) (Company No Vote)), an Acquisition Proposal shall have been publicly announced (or otherwise become publicly known) and not publicly withdrawn and (C) within 12 months following the date of such termination, and the Company (Dx) any consummates a transaction with respect to an Acquisition Proposal is consummated within twelve or (12y) months of such termination or the Company enters into a definitive agreement within twelve (12) months of with respect to an Acquisition Proposal and such termination to effect any Acquisition Proposal, then on whether during such 12-month period or thereafter, is subsequently consummated (provided that for purposes of this clause (C), each reference to “15%” in the date definition of Acquisition Proposal shall be deemed to be a reference to “50%”), then, in any such consummation or such entry into a definitive agreementevent, the Company shall pay a fee to Parent in immediately available funds, prior to or concurrently with the consummation of $15,496,000 such Acquisition Proposal described in cash clause (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(iC), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If The Company agrees, on behalf of itself and its Affiliates, successors and assigns, that (x) the liabilities and damages that may be incurred or suffered by Parent in circumstances in which the Company terminates Termination Fee is payable are uncertain and difficult to ascertain, (y) the Company Termination Fee represents a reasonable estimate of probable liabilities and damages incurred or suffered by Parent in the circumstances described in this Agreement pursuant to Section 9.1(h)11.04, thenand (z) such amount is not excessive or unreasonably large, concurrently given the parties’ intent and dealings with such termination of this Agreement each other, and shall not be argued by the Company to be or be construed as set forth in Section 9.1(h) (ora penalty, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), and the Company shall pay expressly waives any right to argue, assert or cause to be paid to Parent claim any of the Termination Feeforegoing in any dispute among the parties and/or any of their respective Affiliates, successors or assigns, arising out of this Agreement.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated Notwithstanding anything in writing by Parent (and, notwithstanding anything herein this Agreement to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including event that this Agreement is terminated under circumstances in any event any constructive fraud or any fraud that which the Company Termination Fee is not intentional or deliberate) or a Willful Breachpayable pursuant to this Section 11.04(b), notwithstanding anything else Parent’s right to the contrary in terminate this Agreement, Agreement and receive payment of the Company Termination Fee shall constitute liquidated damagesbe the sole and exclusive remedy of Parent, Merger Sub, the Debt Financing Sources or any of their respective Affiliates and any of their respective Related Persons against the Company, its Subsidiaries and any of their respective Affiliates and any of their respective Related Persons for all losses and damages suffered as a result of the failure of the Transactions to be consummated (including any damages for fraud) or for a breach or failure to perform hereunder or otherwise (including in the event of a fraud or breach, whether willful, intentional, unintentional or otherwise, or monetary damages in lieu of specific performance), and from and after upon payment of such termination as described in this Section 9.2(b) amount, none of the Company or its Related Persons shall have no any further liability or obligations obligation relating to or arising out of any kind in connection with this Agreement or the termination contemplated hereby other than as Transactions; provided under that nothing in this Section 9.2(b). For 11.04(b) shall limit, abridge or otherwise modify any remedies available to Parent under the avoidance of doubt, Confidentiality Agreement or otherwise preclude Parent from seeking monetary damages in no the event shall this Agreement is terminated under circumstances pursuant to Section 10.01 in which the Company be obligated to pay the Termination Fee on more than one occasionis not payable.
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Termination Fee. (ia) If (A) Parent or the Company terminates The Parties agree that if this Agreement is terminated by Parent pursuant to Section 9.1(c8.1(e), then the Company shall pay or cause to be paid to Parent, within two (2) Business Days of such termination, the Termination Fee.
(b) The Parties agree that if this Agreement is terminated by the Company pursuant to Section 8.1(f), then the Company shall pay or cause to be paid to Parent, prior to or substantially concurrently with such termination, the Termination Fee.
(c) The Parties agree that if (w) this Agreement is terminated pursuant to Section 8.1(b), Section 9.1(d8.1(d) or Section 9.1(g8.1(g), ; (Bx) in the case of a termination pursuant to Section 9.1(d8.1(d), all at the time of such termination, the conditions set forth in Section 8.1 7.1(b) and Section 8.3 (other than Section 8.3(c)7.1(c) shall have been satisfied or waivedare capable of being satisfied if the date of such termination was the Closing Date; (y) after the date hereof and prior to the termination of this Agreement pursuant to Section 8.1(b), and (CSection 8.1(d) (x) a bona fide or Section 8.1(g), as applicable, an Acquisition Proposal has been publicly announced and not publicly withdrawn or not otherwise publicly abandoned at least two (other than any Acquisition Proposal described in clause (iii)(x2) of the definition of such term) shall have been made Business Days prior to the Company Stockholders’ Meeting (in the case of a termination pursuant to Section 8.1(b)) or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination (in the case of a termination pursuant to Section 8.1(d) or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, Section 8.1(g)); and (Dz) any an Acquisition Proposal is consummated or a definitive agreement with respect to an Acquisition Proposal is entered into (in either case, whether or not the same Acquisition Proposal referred to in clause (y)), in either case, within twelve (12) months of after such termination pursuant to Section 8.1(b), Section 8.1(d) or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition ProposalSection 8.1(g), as applicable, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee or cause to be paid the Termination Fee to Parent, on the earlier of $15,496,000 in cash (the “Termination Fee”)date of consummation of such Acquisition Proposal or the entry into such definitive agreement. Solely for For purposes of this Section 9.2(b)(i8.3(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex IA, except that all the references to “15twenty percent” (“20%”) and “eighty percent” or (“8580%” therein ”) shall be deemed to be references to “fifty percent” (“50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509).
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
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Termination Fee. (a) In the event that:
(i) If (A) Parent an Acquisition Proposal (whether or not conditional) is made directly to the Company’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of the Company or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g)Board, (B) in this Agreement is terminated by the case of termination Company or Parent pursuant to Section 9.1(d7.1(b) or by Parent pursuant to Section 7.1(f) or (h), all (C) immediately prior to the termination of this Agreement, the conditions set forth in Section 8.1 number of Company Shares tendered pursuant to the Offer (and Section 8.3 (other than Section 8.3(c)not validly withdrawn) shall not have been satisfied or waivedthe Minimum Condition, and (CD) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed within 12 months after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) the Company enters into an definitive agreement in respect of any Acquisition Proposal, or a transaction in respect of any Acquisition Proposal is consummated within twelve consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (12) months of such termination or the Company enters into a definitive agreement within twelve (12) months of such termination to effect any Acquisition Proposalprovided, then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 9.2(b)(iclause (C), each reference to “15%” in the term definition of “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references a reference to “50%”), and clause then, within five (iii)(x5) Business Days after such acquisition is consummated, the Company shall cause to be paid to Parent, in cash, a termination fee in the amount of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.$2,900,000; or
(ii) If this Agreement is validly terminated by Parent terminates pursuant to Section 7.1(d) or by the Company pursuant to Section 7.1(e), then, within five (5) Business Days after the termination of this Agreement pursuant to Section 9.1(e7.1(d) or Section 7.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent Parent, in cash, a termination fee in the Termination Fee.
(iii) If amount of $2,900,000; provided, however that the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement payment by the Company as of such amount shall not relieve the Company from any liability or damage resulting from fraud or any Willful Breach of any of its representations, warranties, covenants or agreements set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
Appears in 1 contract
Termination Fee. (a) In the event that:
(i) If (A) Parent or the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(g), (B) in the case of termination pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Takeover Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company or publicly disclosed after the date of this Agreement and not withdrawn prior to the date of such termination or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect or communicated to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date hereof, (B) following the occurrence of an event described in the preceding clause (A), this Agreement and not withdrawn or expressly rejected is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) or by Parent pursuant to Section 7.1(c)(i) and (C) prior to the date of such termination, and (D) any Acquisition Proposal is consummated or within twelve (12) months of such termination or following the date this Agreement is terminated, the Company enters into a definitive agreement within twelve with respect to any Takeover Proposal or any Takeover Proposal is consummated (12) months of such termination in each case whether or not the Takeover Proposal was the same Takeover Proposal referred to effect any Acquisition Proposalin clause (A)); provided, then on the date of such consummation or such entry into a definitive agreementhowever, the Company shall pay a fee of $15,496,000 in cash (the “Termination Fee”). Solely that for purposes of clause (C) of this Section 9.2(b)(i7.3(a)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15"twenty percent (20%” or “85%” therein )" in the definition of Takeover Proposal shall be deemed to be references to “"fifty percent (50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.)" ;
(ii) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii); or
(iii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii); then the Company shall pay to Parent's designees the Termination Fee, by wire transfer of same day funds, it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. For purposes of this Agreement, "Termination Fee" shall mean an amount equal to $23,000,000. If Parent terminates the Termination Fee becomes payable pursuant to Section 7.3(a)(i), it shall be paid no later than three (3) Business Days after the consummation of the Takeover Proposal transaction described in clause (C) of Section 7.3(a)(i). If the Termination Fee becomes payable pursuant to Section 7.3(a)(ii), it shall be paid prior to or contemporaneously with the termination of this Agreement pursuant to Section 9.1(e7.1(d)(ii) (and any purported termination pursuant to this Section shall be void and of no force or effect unless the Company shall have made such payment). If the Termination Fee becomes payable pursuant to Section 7.3(a)(iii), then, within it shall be paid no later than three (3) business days Business Days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates termination of this Agreement pursuant to Section 9.1(h7.1(c)(ii). If the Termination Fee becomes payable pursuant to Section 7.3(a)(iii) because this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii) then the Termination Fee that is payable to Parent shall be reduced by the amount of any Reimbursable Expenses previously paid to Parent or its designee.
(b) In the event that:
(i) the Company shall terminate this Agreement pursuant to Section 7.1(d)(i) or (iii), thenthen Parent shall pay to the Company a termination fee of $38,000,000 in cash (the "Parent Termination Fee"), concurrently with such it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. If the Parent Termination Fee becomes payable pursuant to this Section 7.3(b), it shall be paid no later than three (3) Business Days after the termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)7.1(d)(i) or Section 7.1(d)(iii), as the Company shall pay or cause to be paid to Parent the Termination Feecase may be.
(ivc) Any amount that becomes payable by the Company pursuant to the preceding clauses (i), (iiSection 7.3(a) or (iiiSection 7.3(b) shall be paid by wire transfer of immediately available funds to an account designated by the party entitled to receive such payment.
(d) Each of the parties hereto acknowledge that the agreements contained in writing this Section 7.3 are an integral part of the transactions contemplated hereby, and that without these agreements, the other party would not enter into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 7.3, and, in order to obtain the payment, Parent or the Company, as the case may be, commences a suit which results in a judgment against the other party for the payment set forth in this Section 7.3, such paying party shall pay the other party its reasonable and documented costs and expenses (including reasonable and documented attorneys' fees) in connection with such suit, together with interest on such amount at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made through the date such payment was actually received.
(e) Except in the event of willful breach or fraud by Parent or Merger Sub, (andi) the Company's right to receive payment of the Parent Termination Fee from Parent pursuant to Section 7.3(b) or the Guarantor pursuant to the Guarantee in respect thereof shall be the sole and exclusive remedy of the Company and its Affiliates against the Parent Parties for any loss or damage suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise ("Company Damages"), notwithstanding and (ii) upon payment of such amount none of the Parent Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby (except that Parent shall also be obligated with respect to Section 7.3(d) and the Guarantor under the Guarantee in respect of Section 7.3(d)). Without limiting the Company's right to receive the Parent Termination Fee, in the event of willful breach or fraud by Parent or Merger Sub, the Company shall be entitled to seek Company Damages against Parent or Merger Sub, provided that the maximum aggregate liability (inclusive of the Parent Termination Fee) of Parent or Merger Sub shall not exceed the Liability Limitation (as defined below).
(f) Without limiting Parent's rights under Section 8.7, and except in the event of willful breach or fraud by the Company, Parent's right to cause payment by the Company of (i) the Termination Fee pursuant to Section 7.3(a) and (ii) the Reimbursable Expenses pursuant to Section 7.4 shall be the sole and exclusive remedy of Parent and Merger Sub against the Company Parties for any loss or damage suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise ("Parent Damages"). Without limiting Parent's right under Section 8.7, and except in the event of willful breach or fraud by the Company, upon payment of such amount(s), none of the Company Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby. Without limiting Parent's rights to cause payment of the Termination Fee or the Reimbursable Expenses or its remedies under Section 8.7, in the event of willful breach or fraud by the Company, Parent shall be entitled to seek Parent Damages against the Company, whether or not the Termination Fee has been paid or is payable, provided that the maximum aggregate liability (inclusive of the Termination Fee and the Reimbursable Expenses) of the Company shall not exceed the Liability Limitation.
(g) Notwithstanding anything herein to the contrary, payment the maximum aggregate liability of Parent and Merger Sub for all Company Damages and of the Company for all Parent Damages, respectively, shall not be required prior limited to $38,000,000 (inclusive of the designation of such account by Parent). Except Parent Termination Fee in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment liability of Parent and Merger Sub and inclusive of the Termination Fee shall constitute liquidated damagesand the Reimbursable Expenses in the case of liability of the Company) plus any amounts that may be payable under Section 7.3(d) (the "Liability Limitation"), and from and after such termination as described in this Section 9.2(bno event shall (i) the Company shall have no further liability or obligations any of the Affiliates that are controlled by the Company seek any other Company Damages or any other recovery, judgment or damages of any kind kind, including consequential, indirect, or punitive damages, against Parent, Merger Sub, the Guarantor or any other Parent Parties in excess of the Liability Limitation in connection with this Agreement or the termination 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 or therewith, whether at law or equity, in contract, in tort or otherwise and (ii) Parent or Merger Sub seek any other Parent Damages or any other recovery, judgment or damages of any kind, including consequential, indirect, or punitive damages, against the Company, its Subsidiaries or any other Company Parties in excess of the Liability Limitation in connection with this Agreement 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 or therewith, whether at law or equity, in contract, in tort or otherwise; provided, however, that nothing in this Section 7.3 shall limit the rights of Parent and Merger Sub under Section 8.7. Parent and Merger Sub acknowledge and agree that each of them has no right of recovery against, and no personal liability shall attach to, in each case with respect to Parent Damages, any of the Company Parties (other than as the Company to the extent provided under in this Section 9.2(bAgreement). For , through the avoidance Company or otherwise, whether by or through attempted piercing of doubtthe corporate veil, by or through a claim by or on behalf of the Company against any Company Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, whether in contract, in tort or otherwise. The Company acknowledges and agrees that it has no event right of recovery against, and no personal liability shall attach to, in each case with respect to Company Damages, any of the Parent Parties (other than Parent to the extent provided in this Agreement and the Guarantor to the extent provided in the Guarantee), through Parent or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil, by or through a claim by or on behalf of Parent against the Guarantor or any other Parent Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, whether in contract, in tort or otherwise, except for its rights to recover from the Guarantor (but not any other Parent Party (including any direct or indirect equityholder, controlling person, general partner or managing member)) under and to the extent provided in the Guarantee and subject to the Liability Limitation and the other limitations described therein. Recourse against the Guarantor under the Guarantee shall be the sole and exclusive remedy of the Company and its Affiliates against the Guarantor and any other Parent Party (other than Parent to the extent provided in this Agreement) in respect of any liabilities or obligations arising under, or in connection with, this Agreement 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 obligated to pay the Termination Fee on more than one occasionmade in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise.
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Termination Fee. (i) If this Agreement is terminated by Parent pursuant to Section 10.01(c)(i), then the Company shall pay an amount equal to $134,450,000 (the “Termination Fee”) to Parent in immediately available funds within two (2) Business Days after such termination.
(ii) If this Agreement is terminated by the Company pursuant to Section 10.01(d)(i), then the Company shall pay the Termination Fee to Parent in immediately available funds substantially concurrently with such termination.
(iii) If (A) Parent after the date of this Agreement, an Acquisition Proposal shall have been publicly made or announced (and such Acquisition Proposal is not withdrawn on or prior to the date that is five (5) Business Days prior to the date of the Company terminates this Agreement pursuant to Section 9.1(c), Section 9.1(d) or Section 9.1(gShareholder Meeting), (B) in thereafter, this Agreement is terminated by Parent or the case of termination Company pursuant to Section 9.1(d), all of the conditions set forth in 10.01(b)(ii) or by Parent pursuant to Section 8.1 and Section 8.3 (other than Section 8.3(c)10.01(c)(ii) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made to the Company concurrently with or publicly disclosed after the date of this Agreement and not withdrawn prior up to the date of such termination or that is six (y6) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) months after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company enters into a definitive agreement within with respect to any Acquisition Proposal or (y) after the date that is six (6) months after such termination and up to the date that is twelve (12) months of after such termination to effect any Acquisition Proposaltermination, then on the date of such consummation or such entry Company enters into a definitive agreementagreement with respect to any Acquisition Proposal which is thereafter consummated, then the Company shall pay a fee to Parent the Termination Fee by wire transfer of $15,496,000 same-day funds substantially concurrently with, in cash the cause of clause (x) above, its entry into such definitive agreement and, in the “Termination Fee”)case of clause (y) above, the consummation of such Acquisition Proposal. Solely for For purposes of this Section 9.2(b)(i11.04(b)(iii), all references to “20%” in the term definition of “Acquisition Proposal” shall have the meaning assigned to such term in Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in In no event shall the Company be obligated required to pay the Termination Fee on more than one occasion. Parent and Merger Subsidiary agree that, upon any termination of this Agreement under circumstances where the Termination Fee is payable by the Company pursuant to this Section and such Termination Fee is paid in full, Parent and Merger Subsidiary shall be precluded from any other remedy against the Company, at law or in equity or otherwise, and neither Parent nor Merger Subsidiary shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or Affiliates or their respective Representatives in connection with this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Termination Fee. (i) If Section 7.2.5.1 In addition to any payment required by the foregoing provisions of this Section 7.2, (A) Parent or in the Company terminates event that this Agreement is terminated pursuant to Section 9.1(c)7.1.5 hereof, Section 9.1(dthen Aviza shall pay to Trikon, within two (2) or Section 9.1(g)Business Days thereafter, a termination fee of $1,500,000 and (B) in the case of termination event that this Agreement is terminated pursuant to Section 9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived7.1.4 hereof, and (C) (x) a bona fide an Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have has been made to the Company or publicly disclosed after the date of this Agreement announced and not expressly and publicly withdrawn prior to the Outside Date, then Aviza shall pay Trikon, no later than two (2) days after the earlier to occur of (x) the date of entrance by Aviza or any Aviza Subsidiary into an agreement concerning a transaction that constitutes an Acquisition Proposal, provided that such agreement is entered into within twelve (12) months of the termination of this Agreement or (y) a bona fide Acquisition Proposal described in clause the date any person or group of related persons (iii)(xother than Trikon) purchases 37.5% or more of the definition voting securities of Aviza by way of a tender or exchange offer (provided that any such term shall have been made to the Company tender or shall have been exchange offer for Aviza’s voting securities is first publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated announced within twelve (12) months of such termination of this Agreement), a termination fee of $1,500,000; provided, however, that notwithstanding anything to the contrary in this Agreement, in no event shall Aviza be required to pay Trikon more than an aggregate of $2,000,000 pursuant to Section 7.2.2 and this Section 7.2.5.1.
Section 7.2.5.2 In addition to any payment required by the foregoing provisions of this Section 7.2, (A) in the event that this Agreement is terminated pursuant to Section 7.1.7 or Section 7.1.8 hereof, then Trikon shall pay to Aviza immediately prior to such termination, in the Company enters case of a termination by Trikon, or within two (2) Business Days thereafter, in the case of a termination by Aviza, a termination fee of $1,500,000 and (B) in the event that this Agreement is terminated pursuant to Section 7.1.6 hereof, and an Acquisition Proposal has been publicly announced and not expressly and publicly withdrawn prior to the Trikon Stockholders’ Meeting, then Trikon shall pay Aviza, no later than two (2) days after the earlier to occur of (x) the date of entrance by Trikon or any Trikon Subsidiary into an agreement concerning a definitive transaction that constitutes an Acquisition Proposal, provided that such agreement is entered into within twelve (12) months of the termination of this Agreement or (y) the date any person or group of related persons (other than Aviza) purchases 37.5% or more of the voting securities of Trikon by way of a tender or exchange offer (provided that any such tender or exchange offer for Trikon’s voting securities is first publicly announced within twelve (12) months of such termination to effect any Acquisition Proposalof this Agreement), then on the date of such consummation or such entry into a definitive agreement, the Company shall pay a termination fee of $15,496,000 in cash (the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i)1,500,000; provided, the term “Acquisition Proposal” shall have the meaning assigned to such term in Annex Ihowever, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iii)(x) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to Section 9.1(h), then, concurrently with such termination of this Agreement by the Company as set forth in Section 9.1(h) (or, if later, promptly following the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) the Company shall have no further liability or obligations of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company Trikon be obligated required to pay the Termination Fee on Aviza more than one occasionan aggregate of $2,000,000 pursuant to Section 7.2.3 and this Section 7.2.5.2.
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Termination Fee. (ia) If (A) Parent or In the event that this Agreement is terminated by the Company terminates this Agreement pursuant to Section 9.1(c9.1(c)(ii), then the Company shall pay to Parent the Termination Fee in accordance with Section 9.1(d9.2(d), at or prior to the time of termination.
(b) (I) In the event that (1) this Agreement is terminated by Parent, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) or by Parent pursuant to Section 9.1(g9.1(d)(i); (2) at any time after the date of this Agreement and prior to the Company Shareholder 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 (Bin the case of a termination pursuant to Section 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 termination pursuant to Section 9.1(d9.1(b)(iii), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or waived, and (C) (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the definition of such term) shall have been made not publicly withdrawn at least two Business Days prior to the Company or publicly disclosed Shareholder Meeting; and (3) within 12 months after the date of this Agreement and not withdrawn prior to the date of such termination pursuant to Section 9.1(b)(iii) or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to 9.1(d)(i), the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal is consummated within twelve (12) months of such termination or the Company its Subsidiaries enters into a definitive agreement within twelve with respect to, or consummates, any Company Acquisition Proposal (12) months of such termination to effect any Acquisition Proposalwhether or not the same as that originally announced or consummated), then then, on the date of such consummation execution or such entry into a definitive agreementconsummation, the Company shall pay a fee of $15,496,000 to Parent the Termination Fee in cash (the “Termination Fee”accordance with Section 9.2(d). Solely for For purposes of this Section 9.2(b)(i)9.2(b)(I) only, references in the definition of the term “Company Acquisition Proposal” shall have to the meaning assigned to such term in Annex I, except that all references to “1525%” or “85%” therein shall will be deemed to be references to replaced by the term “50%a majority”. If this Agreement is terminated in the circumstances described in clauses (1) and (2) of the first sentence of this Section 9.2(b)(I), and but the circumstances described in clause (iii)(x3) of such “Acquisition Proposal” definition shall be deemed to refer only to ▇▇▇▇-▇▇▇sentence have not yet occurred, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509.
(ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) business days after such termination, then the Company shall pay or cause to be paid Parent, within two days of Parent’s delivery to Parent the Termination Fee.
(iii) If the Company terminates this Agreement pursuant to of a written statement of its expenses, the Break-Up Expenses in accordance with Section 9.1(h9.2(d), then, concurrently with such termination of this Agreement ; provided that if the circumstances in clause (3) ultimately do occur then any payment by the Company as set forth in Section 9.1(h) (or, if later, promptly following of the provision by Parent of wire transfer instructions pursuant to Section 9.2(b)(iv)), the Company shall pay or cause to be paid to Parent the Termination Fee.
(iv) Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) Break-Up Expenses shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything herein to credited against the contrary, payment shall not be required prior to the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and from and after such termination as described in this Section 9.2(b) that the Company shall have no further liability or obligations payment of any kind in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 9.2(b). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionand the Break-Up Expenses shall not exceed $50 million in the aggregate.
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