Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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otherwise publicly communicated to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”. (ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing). (v) 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 3 contracts
Sources: Agreement and Plan of Merger (Allergan PLC), Merger Agreement (Kythera Biopharmaceuticals Inc), Merger Agreement (Allergan PLC)
Termination Fee. (i) In If this Agreement is terminated by Parent pursuant to Section 10.01(c)(i) or 10.01(c)(iii) or by the event that Company pursuant to Section 10.01(d)(i), then the Company shall pay to Parent in immediately available funds U.S. $33,000,000 (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 (i) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i10.01(b)(i) or Section 8.1(b)(iii10.01(b)(iii) or (ii) by Parent terminates this Agreement pursuant to Section 8.1(c)(iii10.01(c)(ii) (other than as a result of a material breach of Section 6.02 or Section 6.03 (which shall be governed by Section 11.04(b)(i)), (B) after the date of this Agreement and prior to such termination, an Acquisition Proposal shall have been publicly announced or, with respect to termination pursuant to Section 10.01(b)(i) or 10.01(c)(ii), shall have been otherwise communicated to the Company Board or its stockholders and (C) within 12 months following the date of such termination, an Acquisition Proposal shall have been consummated (provided that for purposes of this clause (C), each reference to “15%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”), then the Company shall pay to Parent in immediately available funds, concurrently with the occurrence of the applicable event described in clause (C), the Termination Fee.
(iii) If (A) this Agreement is terminated by Parent or the Company pursuant to Section 10.01(b)(iii), and (B) after the date of this Agreement and prior to such termination, a Competing an Acquisition Proposal shall have been publicly disclosed or otherwise publicly communicated announced, then the Company shall reimburse Parent for the Parent Transaction Expenses, up to a maximum of U.S. $5,000,000, which reimbursement shall occur within two Business Days after Parent provides to the Company Board or the Company’s stockholders notice and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned reasonable documentation with respect to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”Parent Transaction Expenses.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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 3 contracts
Sources: Merger Agreement, Merger Agreement (Palm Inc), Merger Agreement (Hewlett Packard Co)
Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the The Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash 23,040,000 (the “Termination Fee”). Solely for purposes , by wire transfer of this Section 8.2(b)(i)immediately available funds to an account or accounts designated in writing by Parent, in the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.event that:
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(iii) (or A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i9.1(b)(i)(A) or Section 8.1(b)(iii9.1(b)(i)(B) or Parent pursuant (provided, that with respect to Section 8.1(c)(iii)such termination by the Company, in each case, following any time at which Parent was entitled the right to terminate this Agreement pursuant to Section 8.1(c)(i9.1(b)(i) is then available to Parent) or by Parent pursuant to Section 9.1(d)(i); (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, an Acquisition Proposal shall have been publicly announced or shall have become publicly disclosed or publicly known; and (C) within twelve (12) months following such termination of this Agreement, (x) the Company or a Subsidiary of the Company enters into a definitive agreement with any third party with respect to an Acquisition Transaction or (y) an Acquisition Transaction is consummated; in which case the Termination Fee shall be payable within two (2) Business Days after the earlier of the events in clause (C)(x) or (y);
(ii) this Agreement is terminated by the Company pursuant to Section 9.1(c)(ii), in which case the Termination Fee shall be payable concurrently with and as a condition to the effectiveness of such termination; or
(iii) this Agreement is terminated by Parent pursuant to Section 9.1(d)(ii) or Section 8.1(c)(ii)9.1(d)(iii), in which case the Termination Fee shall be payable within one two (12) business day Business Days after such termination, . For purposes of the Company shall pay references to Parent (an “Acquisition Proposal” or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (ian “Acquisition Transaction” in Section 9.3(b)(i), all references to “twenty percent (ii) or (iii20%), such amount ” in the definition of “Acquisition Transaction” shall be paid by wire transfer of immediately available funds deemed to an account designated in writing by Parent be references to “fifty percent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing50%).
(v) 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 3 contracts
Sources: Merger Agreement (Endo, Inc.), Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the The Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash 550,000,000 (the “Termination Fee”). Solely for purposes , by wire transfer of this Section 8.2(b)(i)immediately available funds to an account or accounts designated in writing by Parent, in the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.event that:
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(iii) (or A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i9.1(b)(i) (provided that (x) at the time of such termination, the Antitrust Clearance Condition, No Legal Restraint Condition (solely with respect to any U.S. Antitrust Laws) and No Antitrust Proceedings Condition are satisfied and the Minimum Condition is not satisfied and (y) in the case of a termination by the Company, only if at such time Parent is not in material breach of its obligations such that Parent would be prohibited from terminating this Agreement pursuant to the proviso of Section 9.1(b)(i)); (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, a bona fide Acquisition Proposal shall have been publicly announced or otherwise shall have become publicly disclosed or publicly known and such Acquisition Proposal shall not have been publicly and unconditionally withdrawn prior to the date that is ten (10) Business Days prior to the termination of this Agreement; and (C) within twelve (12) months following such termination of this Agreement, (x) the Company enters into a definitive agreement with any third party with respect to an Acquisition Transaction and such Acquisition Transaction is subsequently consummated (whether during or after such twelve (12) month period), or (y) an Acquisition Transaction is consummated, in which case the Termination Fee shall be payable concurrently with the consummation of any such Acquisition Transaction;
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(iii9.1(c)(ii), in which case the Termination Fee shall be payable concurrently with and as a condition to the effectiveness of such termination; or
(iii) or this Agreement is terminated by Parent pursuant to Section 8.1(c)(iii9.1(d)(ii), in each case, following any time at which Parent was entitled to terminate this Agreement pursuant to Section 8.1(c)(icase the Termination Fee shall be payable within two (2) or Section 8.1(c)(ii)), within one (1) business day Business Days after such termination, . For purposes of the Company shall pay references to Parent (an “Acquisition Proposal” or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (ian “Acquisition Transaction” in Section 9.3(b)(i), all references to “twenty percent (ii) 20%)” or “eighty percent (iii80%), such amount ” in the definition of “Acquisition Transaction” shall be paid by wire transfer of immediately available funds deemed to an account designated in writing by Parent be references to “fifty percent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing50%).
(v) 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 3 contracts
Sources: Merger Agreement (Johnson & Johnson), Merger Agreement (Abiomed Inc), Merger Agreement (Johnson & Johnson)
Termination Fee. (ia) In the event that that:
(i) (A) Parent a bona fide Acquisition Proposal shall have been made, proposed or communicated (and not withdrawn) by a Third Party after the date hereof and prior to the Shareholders’ Meeting (or prior to the termination of this Agreement if there has been no Shareholders’ Meeting), (B) this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii), and (C) within (12) twelve months of the termination of this Agreement, any Acquisition Proposal by such Third Party is entered into or Parent terminates consummated by the Company; or
(ii) (A) this Agreement is terminated by Parent pursuant to Section 8.1(c)(iii8.1(c) and or (B) after this Agreement is terminated by the date Company pursuant to Section 8.1(d)(ii); then, in any such event under clause (i) or (ii) of this Agreement and prior to such terminationSection 8.3(a), 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay a cash amount equal to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash US$1,000,000 (the “Termination Fee”). Solely for purposes ) to Parent or its designee (as directed by Parent) by wire transfer of this Section 8.2(b)(i)same day funds; provided, the term “Competing Proposal” shall have the meaning assigned however, with respect to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” clauses (i) and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i)above, concurrently with such termination, the Company shall pay 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 if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(iin connection with an Acquisition Proposal received by the Company on or before the Go Shop Period End Date, then the Termination Fee shall mean a fee in the amount of US$500,000. The Company shall pay the Termination Fee within five (5) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii), in each case, Business Days 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, in the Company shall pay case of a termination referred to Parent in clause (ii), or a Parent Subsidiary designated by Parentwithin five (5) Business Days after the Termination Fee.
(iv) In earlier of the event any amount date on which an agreement is payable pursuant entered into with respect to an Acquisition Proposal or an Acquisition Proposal is consummated in the preceding clauses case of clause (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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. In the event that Parent or its designee shall receive full payment of the Termination Fee pursuant to this Section 8.3(a), together with reimbursement of any applicable expenses pursuant to Sections 8.3(c) and 8.3(d); the receipt of the Termination Fee, Parent Expenses and the expenses referred to in Section 8.3(d) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Representatives arising out of or in connection with this Agreement or the other Transaction Documents, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination; provided, however, that nothing in this Section 8.3(a) shall limit the rights of Parent and Merger Sub under Section 9.11.
(b) In the event that the Company shall terminate this Agreement pursuant to Section 8.1(d)(i) or Section 8.1(d)(iii), Parent shall pay or cause to be paid to the Company or its designee promptly (but in any event no later than five (5) Business Days) after the Company validly terminates this Agreement pursuant to Section 8.1(d), a termination fee equal to US$2,000,000 (the “Parent Termination Fee”). In the event that the Company shall receive full payment pursuant to this Section 8.3(b) and reimbursement of any applicable expenses pursuant to Section 8.3(d) and the receipt of the Parent Termination Fee and such expenses shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company or any other Person in connection with this Agreement, the Commitment Letter, 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 claim, action or proceeding against Parent, Merger Sub or any of their respective former, current or future Representatives or Affiliates arising out of or in connection with this Agreement, the Commitment Letter, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination provided, however, that nothing in this Section 8.3(b) shall limit the rights of the Company under Section 9.11.
Appears in 2 contracts
Sources: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Termination Fee. (ia) In the event that:
(i) 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 a Takeover Proposal shall have been publicly made, proposed or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) communicated by a third party after the date of this Agreement and not withdrawn prior to, in the case of a termination pursuant to such terminationSection 7.01(b)(iii), a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to the earlier of the completion of the Company Board Shareholders’ Meeting (including any adjournment or postponement thereof) and the Company’s stockholders 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 not publicly and unconditionally withdrawn or abandoned, then if, (B) within nine (9) 12 months of such terminationthe date this Agreement is terminated, the Company enters into a definitive agreement providing for, with respect to a Takeover Proposal (whether or recommends not such Takeover Proposal was the same Takeover Proposal referred to its stockholders, a Competing Proposal or a Competing in clause (A) and such Takeover Proposal is consummated, then within one subsequently consummated (1) business day even if after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”12 month period). Solely ); provided that, for purposes of clauses (B) and (C) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 (A) by Parent pursuant to Section 7.01(c)(ii) or (B) by the Company pursuant to Section 8.1(b)(i7.01(d)(ii); then, in any such event under clause (i) or (ii) of this Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii7.03(a), the Company shall pay, or cause to be paid, the Company Termination Fee to Parent or its designee by wire transfer of same-day funds (x) in each case, following any time at which Parent was entitled to terminate this Agreement pursuant to the case of Section 8.1(c)(i) or Section 8.1(c)(ii)7.03(a)(ii)(A), within one (1) two business day days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii)(B), (ii) prior to or concurrently with such termination or (iiiz) in the case of Section 7.03(a)(i), such amount shall be paid by wire transfer within two business days after the consummation of immediately available funds the Takeover Proposal referred to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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 2 contracts
Sources: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)
Termination Fee. (i) In the event that If this Agreement is terminated (A) Parent by the Investor pursuant to Section 10.01(c)(i) or Section 10.01(c)(ii) or (B) by the Company pursuant to Section 10.01(d)(i), then in each case the Company shall pay to Investor in immediately available funds $30,000,000 (the “Termination Fee”), in the case of a termination by the Investor, within one Business Day after such termination and, in the case of a termination by the Company, immediately before and as a condition to the effectiveness of such termination.
(ii) If (A) this Agreement is terminated by the Investor or the Company terminates this Agreement pursuant to Section 8.1(b)(i10.01(b)(i) or Section 8.1(b)(iii) 10.01(b)(iii), or Parent terminates this Agreement by the Investor pursuant to Section 8.1(c)(iii) and 10.01(c)(iii), (B) after the date of this Agreement and (x) prior to such terminationtermination (in the case of a termination pursuant to Section 10.01(b)(i) or Section 10.01(c)(iii)) or (y) prior to the Company Stockholder Meeting (in the case of a termination pursuant to Section 10.01(b)(iii)), a Competing an Acquisition Proposal shall have been publicly disclosed announced or otherwise publicly communicated to the Company Board or the Company’s stockholders and not unconditionally withdrawn (and, if such Acquisition Proposal was publicly announced, publicly and unconditionally withdrawn or abandoned, then if, withdrawn) and (C) within nine (9) 12 months following the date of such termination, the Company (x) enters into a definitive agreement providing forwith respect to an Acquisition Proposal, or (y) recommends an Acquisition Proposal to its stockholders, a Competing Proposal stockholders or a Competing Proposal is consummated(z) consummates an Acquisition Proposal, then within one (1) business day after the Company shall pay to the Investor in immediately available funds, concurrently with the occurrence of the applicable event described in this clause (2) C), the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i12.03(b)(ii), the term an “Competing Acquisition Proposal” shall have mean any transaction described in the meaning assigned to such term definition of “Acquisition Proposal” in Section 5.3(j)(i), 1.01 of this Agreement except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “5035%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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 2 contracts
Sources: Transaction Agreement, Transaction Agreement (Foundation Medicine, Inc.)
Termination Fee. (ia) In the event that that:
(i) this Agreement is terminated by the Company pursuant to Section 7.01(d)(ii) (Superior Proposal);
(ii) this Agreement is terminated by Buyer pursuant to Section 7.01(c)(ii) (Adverse Recommendation Change); or
(iii) (A) Parent this Agreement is terminated by Buyer or the Company terminates this Agreement pursuant to Section 8.1(b)(i7.01(b)(i) (Outside Date) or Section 8.1(b)(iii7.01(b)(iii) (Failure to Obtain Company Stockholder Approval) or Parent terminates this Agreement by Buyer pursuant to Section 8.1(c)(iii7.01(c)(i) and (Company Terminating Breach), (B) a bona fide Takeover Proposal has been publicly announced or become publicly disclosed or publicly known after the date of this Agreement and prior to such terminationtermination and, a Competing Proposal shall have in either case, has not been publicly disclosed withdrawn or otherwise publicly communicated abandoned prior to such termination (or, in the case of a termination pursuant to Section 7.01(b)(iii) (Failure to Obtain Company Stockholder Approval), at least three Business Days prior to the Company Board or the Company’s stockholders Stockholders Meeting), and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine (9) 12 months of following such termination, the Company enters into a definitive written agreement providing for, or recommends to its stockholders, for a Competing Takeover Proposal that is later consummated or a Competing Takeover Proposal is consummated, then within one consummated (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 8.2(b)(i7.03(a)(iii), the term “Competing Takeover Proposal” shall have the meaning assigned given to such term in Section 5.3(j)(i)this Agreement, except that all references to percentages included in the definition of “15%Takeover Proposal” therein shall be deemed increased to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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 2 contracts
Sources: Agreement and Plan of Merger (Penske Automotive Group, Inc.), Agreement and Plan of Merger (Penske Automotive Group, Inc.)
Termination Fee. (a) If this Agreement is terminated by:
(i) In the event Company pursuant to Section 9.1(d)(iii);
(ii) Parent pursuant to Section 9.1(c)(ii) (or is terminated pursuant to another provision at a time it is terminable pursuant to Section 9.1(c)(ii)); or
(iii) either Party pursuant to Section 9.1(b)(iii) (or is terminated pursuant to another provision at a time that it is terminable pursuant to Section 9.1(b)(iii)), and, in the case of this clause (iii), (A) Parent or a Competing Proposal with respect to the Company terminates this Agreement pursuant to Section 8.1(b)(i) shall have been publicly announced or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) made publicly known after the date of this Agreement and prior to such termination, a Competing Proposal shall not have been publicly disclosed or otherwise publicly communicated withdrawn at least two (2) Business Days prior to the Company Board or the Company’s stockholders Shareholder Meeting and not publicly and unconditionally withdrawn or abandoned, then if, (B) within nine six (96) months of such terminationthe date this Agreement is so terminated, the Company enters into a definitive agreement providing for, or recommends to its stockholders, for a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(iits designee), in cash, a payment in an amount equal to the term “Competing Proposal” shall have Company Termination Fee (A) in the meaning assigned to such term in case of Section 5.3(j)(i9.3(a)(i), except that all references prior to “15%” or simultaneously with such termination, (B), in the case of Section 9.3(a)(ii), within two (2) Business Days following such termination, and (C) in the case of Section 9.3(a)(iii), at or prior to the first to occur of (1) the entry into a definitive agreement providing for a Competing Proposal referred to therein shall be deemed and (2) the consummation of a Competing Proposal referred to be “50%” and all references therein.
(b) If this Agreement is terminated by:
(i) the Parent pursuant to “85%” therein shall be deemed to be “50%”.Section 9.1(c)(iii);
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(i9.1(d)(ii) (or Section 8.1(b)(iii) or Parent is terminated pursuant to another provision at a time it is terminable pursuant to Section 8.1(c)(iii9.1(d)(ii), in each case, following any time at which Parent was entitled to terminate this Agreement ); or
(iii) either Party pursuant to Section 8.1(c)(i9.1(b)(iv) (or is terminated pursuant to another provision at a time that it is terminable pursuant to Section 8.1(c)(ii9.1(b)(iv)), within one (1) business day after such terminationand, in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or case of this clause (iii), (A) a Competing Proposal with respect to Parent shall have been publicly announced or made publicly known after the date of this Agreement and shall not have been publicly withdrawn at least two (2) Business Days prior to the Parent Shareholder Meeting and (B) within six (6) months of the date this Agreement is so terminated, Parent enters into a definitive agreement providing for a Competing Proposal or a Competing Proposal is consummated, then Parent shall pay to the Company (or its designee), in cash, a payment in an amount equal to the Parent Termination Fee (A) in the case of Section 9.3(b)(i), prior to or simultaneously with such amount termination, (B), in the case of Section 9.3(b)(ii), within two (2) Business Days following such termination, and (C) in the case of Section 9.3(b)(iii), at or prior to the first to occur of (1) the entry into a definitive agreement providing for a Competing Proposal referred to therein and (2) the consummation of a Competing Proposal referred to therein.
(c) Any payment of a Termination Fee shall be paid made by wire transfer of immediately available funds (in U.S. dollars) to an account designated in writing by Parent the Party receiving the Termination Fee (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingthe “Receiving Party”).
(vd) For If the avoidance Receiving Party decides to apply for a ruling from the IRS with respect to the tax consequences of doubtthe receipt of the Termination Fee, the Party paying the Termination Fee (the “Paying Party”) shall cooperate with the Receiving Party and use commercially reasonable efforts to provide assistance (if any) requested by the Receiving Party with respect thereto.
(e) The Parties agree and understand that in no event shall the Company a Party be obligated required to pay the a Termination Fee on more than one occasion. The Parties acknowledge that the agreements contained in this Section 9.3 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 9.3 do not constitute a penalty and that no Party will be entitled to argue that a Termination Fee is unenforceable or should be reduced in any manner. Accordingly, if a Party fails to promptly pay any Termination Fee due pursuant to this Section 9.3, the Party obligated to pay such Termination Fee shall also pay any reasonable and documented out-of-pocket costs and expenses incurred by the Party entitled to receive such Termination Fee in connection with a legal action to enforce this Agreement that results in a judgment for such amount against the obligated Party. Any Termination Fee not paid when due pursuant to this Section 9.3 shall bear interest from the date such amount is due until the date paid at a rate equal to the prime rate as published in The Wall Street Journal, Eastern Edition in effect on the date of such payment. Other than in the case of material breach of a Party’s covenants or agreements set forth in this Agreement prior to the termination of this Agreement that is a consequence of a deliberate act undertaken, or a deliberate failure to act, by the breaching Party with the actual knowledge that the taking of or failure to take such act would cause a material breach of any such covenant or agreement in this Agreement, the amounts payable by a Party pursuant to this Section 9.3, shall be the sole and exclusive monetary remedy of the Receiving Party and its Affiliates and Representatives in the event of a termination of this Agreement in connection with which the Termination Fee is payable by a Paying Party pursuant to this Section 9.3, and in respect of which the Termination Fee and any such additional amounts payable pursuant to this Section 9.3(e) are actually paid to the Receiving Party, for any and all losses and damages suffered as a result of the failure of the transactions contemplated hereby to be consummated or for a breach or failure to perform by a Paying Party of its covenants and agreements hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Diversified Healthcare Trust), Merger Agreement (Office Properties Income Trust)
Termination Fee. (ia) In the event that that:
(i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(i6.1(d) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(iii6.1(g) or Section 6.1(i), (B) any Alternative Acquisition Proposal has been made known to the Company or publicly announced by any Person (other than by Parent, Merger Sub or their respective affiliates) and, in each either case, following any time at which Parent was entitled to terminate not withdrawn after the date of this Agreement but prior to such termination or, with respect to a termination pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii)6.1(d), prior to the Company Stockholders Meeting and (C) the Company (I) completes an Alternative Acquisition Proposal within one twelve (112) business day after months of the date this Agreement is terminated or (II) enters into a definitive agreement with respect to any Alternative Acquisition Proposal, within twelve (12) months of the date this Agreement is terminated, and such Alternative Acquisition Proposal is consummated (provided, that for purposes of clause (C), the references to “20%” in the definition of Alternative Acquisition Proposal shall be deemed to be references to “50%”), then within two Business Days of such consummation, the Company shall pay to Parent by wire transfer the Company Termination Fee;
(ii) this Agreement is terminated by the Company pursuant to Section 6.1(f), then prior to or substantially concurrently with such termination the Company shall pay to Parent the Company Termination Fee by wire transfer; or
(iii) this Agreement is terminated by Parent pursuant to Section 6.1(e), then within two Business Days of such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Company Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid Fee by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, transfer; 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 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)
Termination Fee. (a) The Parties agree that if this Agreement is terminated by Parent in accordance with Section 7.1(e) or by the Company in accordance with Section 7.1(f), then the Company shall pay (or cause to be paid) to Parent (or its designee) prior to or concurrently with such termination, in the case of a termination by the Company, or within two (2) Business Days thereafter, in the case of a termination by Parent, a termination fee equal to $11,600,000 (the “Company Termination Fee”).
(b) The Parties agree that (i) In if this Agreement is terminated in accordance with Section 7.1(b), Section 7.1(d) or Section 7.1(j) and, prior to the event that date of such termination, a Company Acquisition Proposal is (A) Parent or made to the Company, the Company terminates this Agreement Board or any committee thereof (or in the case of termination pursuant to Section 8.1(b)(i) 7.1(d), made public by the Company or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iiiany other Person) and (B) after not withdrawn (publicly in the date case of this Agreement termination pursuant to Section 7.1(d)), 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 abandoned, then if, (ii) within nine twelve (912) months of after such termination, termination (A) the Company enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing any Company Acquisition Proposal or a Competing (B) any Company Acquisition Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay (or cause to be paid) the Company Termination Fee to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”its designee), prior to or concurrently therewith. Solely for For purposes of this Section 8.2(b)(i7.3(b), the term “Competing Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)8.4, except that all the references to “15%20% or more” therein shall be deemed to be “50%” and all references to “85more than 50%.”
(c) The Parties agree that if this Agreement is terminated by the Company in accordance with Section 7.1(i) or by Parent in accordance with Section 7.1(g), then Parent shall pay (or cause to be paid) to the Company (or its designee) prior to or concurrently with such termination, in the case of a termination by Parent, or within two (2) Business Days thereafter, in the case of a termination by the Company, a termination fee equal to $11,600,000 (the “Parent Termination Fee”).
(d) The Parties agree that (i) if this Agreement is terminated in accordance with Section 7.1(b), Section 7.1(h) or Section 7.1(k) and, prior to the date of such termination, a Parent Acquisition Proposal is (A) made to Parent, the Parent Board or any committee thereof (or in the case of termination pursuant to Section 7.1(h), made public by Parent or any other Person) and (B) not withdrawn (publicly in the case of termination pursuant to Section 7.1(h)), and (ii) within twelve (12) months after such termination (A) Parent enters into a definitive agreement with respect to any Parent Acquisition Proposal or (B) any Parent Acquisition Proposal is consummated, then Parent shall pay (or cause to be paid) the Parent Termination Fee to the Company (or its designee), prior to or concurrently therewith. For purposes of this Section 7.3(d), the term “Parent Acquisition Proposal” therein shall have the meaning assigned to such term in Section 8.4, except that the references to “20% or more” shall be deemed to be references to “more than 50%.”
(e) The Company, Parent, Merger Sub I, and Merger Sub II acknowledge that the agreements contained in this Section 7.3 are an integral part of this Agreement and that, without this Section 7.3, the Company, Parent, Merger Sub I, and Merger Sub II would not have entered into this Agreement. Accordingly, if the Company or Parent fails to promptly pay any amount due pursuant to this Section 7.3, the Company or Parent, as applicable, shall pay to the non-breaching Party all reasonable fees, costs and expenses of enforcement (including reasonable attorneys’ fees as well as reasonable expenses incurred in connection with any Proceeding initiated by such non-breaching Party), together with interest on the amount of the Company Termination Fee or the Parent Termination Fee, as applicable, at the prime lending rate as published in The Wall Street Journal, in effect on the date such payment is made.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(vf) For the avoidance of doubt, (i) in no event shall Parent or the Company be obligated required to pay the Parent Termination Fee or Company Termination Fee, as applicable, on more than one (1) occasion, (ii) while Parent, Merger Sub I, and Merger Sub II may pursue, in the alternative and at their sole discretion, both a grant of specific performance in accordance with Section 8.14 and the payment of the Company Termination Fee under Section 7.3, under no circumstances shall Parent, Merger Sub I, and Merger Sub II be permitted or entitled to receive both a grant of specific performance and the Company Termination Fee and (iii) while the Company may pursue, in the alternative and at its sole discretion, both a grant of specific performance in accordance with Section 8.14 and the payment of the Parent Termination Fee under Section 7.3, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance and the Parent Termination Fee. The payment by the Company of the Company Termination Fee pursuant to Section 7.3(a) or Section 7.3(b), shall be the sole and exclusive remedy of Parent, Merger Sub I, Merger Sub II and their respective affiliates and Representatives in the event of termination of this Agreement under circumstances requiring the payment of a Company Termination Fee pursuant to Section 7.3(a) or Section 7.3(b); provided that no such payment shall relieve the Company of any liability or damages to Parent, Merger Sub I, or Merger Sub II resulting from its material breach of Section 5.3, Willful Breach or Fraud. The payment by Parent of the Parent Termination Fee pursuant to Section 7.3(c) or Section 7.3(d), shall be the sole and exclusive remedy of the Company and its affiliates and Representatives in the event of termination of this Agreement under circumstances requiring the payment of a Parent Termination Fee pursuant to Section 7.3(c) or Section 7.3(d); provided that no such payment shall relieve Parent, Merger Sub I, or Merger Sub II of any liability or damages to the Company resulting from its material breach of Section 5.4, Willful Breach or Fraud.
Appears in 2 contracts
Sources: Merger Agreement (Marine Products Corp), Merger Agreement (MasterCraft Boat Holdings, Inc.)
Termination Fee. (ia) In the event The parties agree that (Aif this Agreement is terminated by Parent in accordance with Section 7.1(e) Parent or by the Company terminates this Agreement pursuant to in accordance with Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned7.1(f), then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay (or cause to be paid) to Intermediate Parent (or its designee) prior to or concurrently with such termination, in the case of a Parent Subsidiary designated termination by the Company, or within two (2) Business Days thereafter, in the case of a termination by Parent, a termination fee equal to eighteen million four hundred seventy-two thousand dollars ($18,472,000) a fee of $69,750,000 in cash (the “Termination Fee”); provided, however, that in the event the Termination Fee becomes payable as a result of the termination of this Agreement prior to the Window Period End Time (i) by Parent pursuant to Section 7.1(e) in response to a Change of Board Recommendation effected in compliance with Section 5.3(d) with respect to a Superior Proposal by a Qualified Bidder or (ii) by the Company pursuant to Section 7.1(f) with respect to a Superior Proposal by a Qualified Bidder, then, in the case of either of the immediately preceding clauses (i) or (ii), “Termination Fee” means an amount equal to ten million dollars ($10,000,000).
(b) The parties agree that (i) if (A) this Agreement is terminated in accordance with Section 7.1(b) or 7.1(g) and, prior to the date of such termination, a bona fide Acquisition Proposal is (1) made public by the Company or any other Person and (2) not withdrawn or (B) this Agreement is terminated in accordance with Section 7.1(d) and, prior to the date of completion of the Company Stockholders Meeting, a bona fide Acquisition Proposal is (1) made public by the Company or any other Person and (2) not withdrawn and (ii) within twelve (12) months after such termination, the Company (A) enters into a definitive agreement with respect to any such Acquisition Proposal, which Acquisition Proposal is subsequently consummated, or (B) consummates any such Acquisition Proposal, then the Company shall pay (or cause to be paid) the Termination Fee to Intermediate Parent (or its designee), no later than two (2) Business Days after the consummation of such transaction, as applicable. Solely for For the avoidance of doubt, the Company shall not be obligated to pay the Termination Fee with respect to any Acquisition Proposal unless such Acquisition Proposal is consummated. For purposes of this Section 8.2(b)(i7.3(b), the term “Competing Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)8.4, except that all the references to “1520%” therein shall be deemed to be references to “50%” and all references to “85%” therein shall be deemed to be “50%.”.
(iic) If The Company acknowledges that the agreement contained in this Section 7.3 is an integral part of this Agreement and that, without this Section 7.3, Merger Sub, Intermediate Parent and Parent would not have entered into this Agreement. Accordingly, if the Company terminates this Agreement fails to promptly pay any amount due pursuant to this Section 8.1(d)(i), concurrently with such termination7.3, the Company shall pay to Parent Merger Sub all reasonable fees, costs and expenses of enforcement (or a Parent Subsidiary designated including reasonable attorneys’ fees as well as reasonable expenses incurred in connection with any action initiated by Parent) , Intermediate Parent or Merger Sub), together with interest on the amount of the Termination FeeFee at the prime lending rate as published in The Wall Street Journal, in effect on the date such payment is made.
(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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(vd) For the avoidance of doubt, in no event shall the Company be obligated required to pay the Termination Fee on more than one (1) occasion.
(e) Subject to Parent’s and Merger Sub’s rights set forth in Section 8.14, if and to the extent the Termination Fee is required to be, and is in fact, paid by the Company pursuant to this Section 7.3, Intermediate Parent’s (or its designee’s) right to receive payment thereof shall be the sole and exclusive remedy of Parent, Intermediate Parent and Merger Sub against the Company, the Company Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or affiliates (collectively, “Company Related Parties”) for any loss suffered as a result of the failure of the transactions contemplated by this Agreement, including the Merger, to be consummated or for a breach or failure to perform hereunder or otherwise, and 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, including the Merger (except that the Company shall also be obligated with respect to Section 7.3(c) and except that the applicable Company Related Parties shall remain obligated for, and Parent and Merger Sub may be entitled to remedies with respect to the provisions and agreements surviving such termination pursuant to Section 7.2). For the avoidance of doubt, while Parent and Merger Sub may pursue, in the alternative, both a grant of specific performance in accordance with Section 8.14 and the payment of the Termination Fee under Section 7.3, under no circumstances shall Parent and Merger Sub be permitted or entitled to receive both a grant of specific performance and the Termination Fee.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Taylor Morrison Home Corp), Merger Agreement (AV Homes, Inc.)
Termination Fee. (a) If this Agreement shall be terminated:
(i) In the event that by GBDC pursuant to Section 9.1(d)(ii) or Section 9.1(d)(iii);
(ii) by GCIC pursuant to Section 9.1(c)(iv); or
(iii) (A) Parent by (x) GBDC or the Company terminates this Agreement GCIC pursuant to Section 8.1(b)(i9.1(b)(ii) or Section 8.1(b)(iii9.1(b)(iii) or Parent terminates this Agreement (y) GBDC pursuant to Section 8.1(c)(iii9.1(d)(i) and (solely to the extent that GCIC has committed a willful or intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and 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 abandoned, then if, within nine (9) months date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Section 9.1(b)(ii) or Section 9.1(d)(i), prior to the Company date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iii), prior to the time of the duly held GCIC Stockholders Meeting, and (C) GCIC enters into a definitive agreement providing forContract with respect to such Takeover Proposal within twelve (12) months after such termination, or recommends to its stockholders, a Competing Proposal or a Competing and such Takeover Proposal is consummatedsubsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period); provided, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely that for purposes of this Section 8.2(b)(i9.2(a)(iii), the term “Competing Takeover Proposal” shall will have the meaning assigned to such term in Section 5.3(j)(i)Article X, except that all references to “1525%” therein shall will be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
, then GCIC shall (iiA) If in the Company terminates this Agreement pursuant to case of Section 8.1(d)(i9.2(a)(i), concurrently with no later than two (2) Business Days after the date of such termination, (B) in the Company shall pay case of Section 9.2(a)(ii), prior to, and as a condition to Parent such termination, and (or a Parent Subsidiary designated by ParentC) in the Termination Fee.
case of Section 9.2(a)(iii), within two (iii2) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii) (or this Agreement Business Days after the date that such Takeover Proposal 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)consummated, in each casecase pay GBDC, following any time at which Parent was entitled subject to terminate this Agreement pursuant applicable Law, a non-refundable fee in an amount equal to Section 8.1(c)(i) or Section 8.1(c)(ii)), within one $29,000,000.00 (1) business day after such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the “GCIC Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i)as liquidated damages and full compensation hereunder, (ii) or (iii), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing to GCIC by Parent GBDC if GBDC shall have furnished to GCIC wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check. In the event that the GCIC Termination Fee becomes payable and is paid by GCIC pursuant to this Section 9.2(a), the GCIC Termination Fee shall be GBDC’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
(b) If this Agreement shall be terminated:
(i) by GCIC pursuant to Section 9.1(c)(ii) or Section 9.1(c)(iii);
(ii) by GBDC pursuant to Section 9.1(d)(iv); or
(iii) (A) by (x) GBDC or GCIC pursuant to Section 9.1(b)(ii) or Section 9.1(b)(iv) or (y) GCIC pursuant to Section 9.1(c)(i) (solely to the extent that GBDC has committed a willful or intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Section 9.1(b)(ii) and Section 9.1(c)(i), prior to the date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iv), prior to the time of the duly held GBDC Stockholders Meeting, and (C) GBDC enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period); provided, that for purposes of this Section 9.2(b)(iii), the term “Takeover Proposal” will have the meaning assigned to such term in Article X, except that references to “25%” will be deemed to be references to “50%”, then GBDC shall (A) in the case of Section 9.2(b)(i), no later than two (2) Business Days after the date of such termination, (B) in the case of Section 9.2(b)(ii), prior to, and as a condition to such termination, and (C) in the case of Section 9.2(b)(iii), within two (2) Business Days after the date that such Takeover Proposal is consummated, in each case, pay GCIC, subject to applicable Law, a non-refundable fee in an amount equal to $29,000,000.00 (the “GBDC Termination Fee”) as liquidated damages and full compensation hereunder, by wire transfer of immediately available funds to an account designated in writing to GBDC by GCIC if GCIC shall have furnished to GBDC wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check. In the event that the GBDC Termination Fee becomes payable and is paid by GBDC pursuant to this Section 9.2(b), the GBDC Termination Fee shall be GCIC’s sole and exclusive remedy for monetary damages under this Agreement.
(c) The parties acknowledge that the agreements contained in this Section 9.2 are an integral part of the Transactions, that without these agreements each party would not have entered into this Agreement, and that any amount becomes amounts payable pursuant to this Section 9.2 do not constitute a penalty. If GBDC fails to pay any such clauseamounts due to GCIC pursuant to this Section 9.2 within the time periods specified in this Section 9.2 or GCIC fails to pay GBDC any amounts due to GBDC pursuant to this Section 9.2 within the time periods specified in this Section 9.2, such amount GBDC or GCIC, as applicable, shall not be pay reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred by GCIC or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubtGBDC, as applicable, in no event shall connection with any action, including the Company filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts from the date payment of such amounts was due at the prime lending rate in effect on the date payment was due as published in The Wall Street Journal (or any successor publication thereto), calculated on a daily basis from the date such amounts were required to be obligated to pay paid until the Termination Fee on more than one occasiondate of actual payment.
Appears in 2 contracts
Sources: Merger Agreement (GOLUB CAPITAL BDC, Inc.), Merger Agreement (GOLUB CAPITAL INVESTMENT Corp)
Termination Fee. (ia) In the event that:
(i) this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(i) or by Parent pursuant to Section 7.01(c)(i) (as a result of a breach by the Company of Section 5.02); provided that (A) Parent at the time of termination (x) the Financing Letters shall not have been terminated, withdrawn or rescinded without being replaced in compliance with Section 5.04 and (y) the Company terminates shall not have been entitled to terminate this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and 7.01(d)(iii), (B) a bona fide Takeover Proposal shall have been publicly made, proposed or communicated (or shall have otherwise become publicly known) after the date of this Agreement and not withdrawn 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 time of termination and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine (9) 12 months of such terminationthe date this Agreement is terminated, the Company enters into a definitive agreement providing forwith respect to a Takeover Proposal and, or recommends to its stockholdersat any time thereafter, a Competing Proposal or a Competing Proposal is consummatedconsummates such Takeover Proposal; provided that, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of clauses (B) and (C) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If the Company terminates this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(i7.01(c)(ii) or (B) by the Company pursuant to Section 7.01(d)(ii); then, concurrently with in any such terminationevent under clause (i) or (ii) of this Section 7.03(a), the Company shall pay the applicable Company Termination Fee and Parent Expenses to Parent or its designee by wire transfer of same-day funds (or a Parent Subsidiary designated by Parentx) in the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to case of 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)7.03(a)(ii)(A), within one (1) two business day days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii)(B), (ii) simultaneously with such termination or (iiiz) in the case of Section 7.03(a)(i), such amount shall be paid by wire transfer within two business days after the consummation of immediately available funds the Takeover Proposal referred to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, therein; it being understood that in no event shall the Company be obligated required to pay the applicable Company Termination Fee and Parent Expenses on more than one occasion. As used herein, “Company Termination Fee” shall mean a cash amount equal to $34,000,000, except that “Company Termination Fee” shall mean a cash amount equal to $17,000,000 in the event that:
(1) this Agreement is terminated by Parent pursuant to Section 7.01(c)(ii) in a circumstance in which the Adverse Recommendation Change giving rise to the right of termination is based on a Takeover Proposal (or any amendment or modification to a predecessor Takeover Proposal) submitted prior to the expiration of the Go-Shop Period (a “Qualifying Takeover Proposal”) in respect of which the Board of Directors of the Company or any committee or subcommittee thereof first delivered an Adverse Recommendation Change/Superior Proposal Notice pursuant to Section 5.02(e) prior to the expiration of the Go-Shop Period (irrespective of whether any Additional Notice is delivered after the expiration of the Go-Shop Period as a result of an amendment or modification to such Qualifying Takeover Proposal); or
(2) this Agreement is terminated by the Company pursuant to Section 7.01(d)(ii) in connection with entering into a Company Acquisition Agreement with any Person that submitted a Qualifying Takeover Proposal in respect of which the Board of Directors of the Company or any committee or subcommittee thereof first delivered an Adverse Recommendation Change/Superior Proposal Notice pursuant to Section 5.02(e) prior to the expiration of the Go-Shop Period (irrespective of whether any Additional Notice is delivered after the expiration of the Go-Shop Period as a result of an amendment or modification to such Qualifying Takeover Proposal).
(b) In the event that the Company shall terminate this Agreement pursuant to Section 7.01(d)(i) or Section 7.01(d)(iii), or Parent shall terminate this Agreement pursuant to Section 7.01(b)(i) and at such time the Company could have terminated this Agreement pursuant to Section 7.01(d)(i) or Section 7.01(d)(iii), then Parent shall pay to the Company a termination fee of $95,000,000 in cash (the “Parent Termination Fee”) by wire transfer of same-day funds simultaneously with such termination, it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(c) 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 the case may be, fails to timely pay any amount due pursuant to this Section 7.03, and, in order to obtain the payment, Parent or the Company, as the case may be, commences an Action which results in a judgment against the other party, with respect to Parent or Merger Sub, or parties, with respect to the Company, for the payment set forth in this Section 7.03, such paying party shall pay the other party or parties, as applicable, 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.
(d) Subject in all respects to the Company’s injunction, specific performance and equitable relief rights set forth in Section 8.08 and the reimbursement and indemnification obligations of Parent under Section 5.04(c) and Section 7.03(c) hereof, (i) in the event the Parent Termination Fee is paid to the Company in circumstances for which such fee is payable pursuant to Section 7.03(b), payment of the Parent Termination Fee shall be the sole and exclusive remedy of the Company and its Subsidiaries against Parent, Merger Sub, the Guarantors or any of their respective former, current or future general or limited partners, stockholders, financing sources, managers, members, directors, officers or Affiliates (collectively, the “Parent 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 relating to or arising out of this Agreement or the Transactions, and (ii) 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. Subject in all respects to Parent’s injunction, specific performance and equitable relief rights set forth in Section 8.08 and the reimbursement obligations of the Company under Section 7.03(c) hereof, (A) in the event the Company Termination Fee and Parent Expenses are paid to Parent in circumstances for which such fee is payable pursuant to Section 7.03(a), payment of the Company Termination Fee and Parent Expenses shall be the sole and exclusive monetary damages remedy of the Parent Related Parties 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 (B) upon payment of such amounts 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 Parent Termination Fee or the Company Termination Fee and Parent Expenses, as applicable, under Section 7.03, under no circumstances shall the Company or Parent be permitted or entitled to receive both a grant of specific performance that results in a Closing and any money damages, including all or any portion of the Parent Termination Fee or the Company Termination Fee and Parent Expenses, as applicable.
(e) In connection with any loss suffered by any Parent Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which Parent is entitled to receive the Company Termination Fee and Parent Expenses in accordance with Section 7.03(a) (in which case Section 7.03(d) shall apply), Parent agrees, on behalf of itself and the Parent Related Parties, that the maximum aggregate monetary liability of the Company and the Company Related Parties, if any, shall be limited to the amount of the Company Termination Fee and Parent Expenses, and in no event shall Parent or any Parent Related Party seek or be entitled to recover from the Company or any Company Related Parties, and Parent on behalf of itself and the Parent Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in excess of such amount. In connection with any loss suffered by any Company Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which the Company is entitled to receive the Parent Termination Fee in accordance with Section 7.03(b) (in which case Section 7.03(d) shall apply) and without limiting the reimbursement and indemnification obligations of Parent under Section 5.04(c), the Company agrees, on behalf of itself and the Company Related Parties, that the maximum aggregate monetary liability of Parent and the Parent Related Parties, if any, shall be limited to the amount of the Parent Termination Fee, and in no event shall the Company or any Company Related Party seek or be entitled to recover from Parent or any Parent Related Parties, and the Company on behalf of itself and the Company Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in excess of such amount.
Appears in 2 contracts
Sources: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
Termination Fee. (a) If this Agreement shall be terminated pursuant to (i) In Section 8.1(b)(i)(A), 8.1(b)(ii) (provided that, in the event that case of a termination pursuant to Section 8.1(b)(ii), as of the Termination Date, the conditions set forth in Sections 7.1 and 7.3 have been waived in writing by the Company or satisfied, other than those conditions which by their nature are to be satisfied on the Closing Date) or 8.1(d)(iii) and (A) Parent or prior to the Company terminates this Agreement Stockholder Meeting a bona fide Takeover Proposal shall have been (1) publicly announced and not withdrawn (excluding, any withdrawals that are not publicly communicated at least five (5) Business Days prior to the date of the Company Stockholder Meeting), in the case of a termination pursuant to Section 8.1(b)(i8.1(b)(i)(A), or (2) publicly announced or Section 8.1(b)(iii) or Parent terminates this Agreement otherwise communicated to the Board of Directors of the Company and not withdrawn, in the case of a termination pursuant to Section 8.1(c)(iii8.1(b)(ii) or 8.1(d)(iii), and (B) 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 abandoned, then if, within nine (9) months of such terminationthe termination of this Agreement, the Company enters into a definitive agreement providing forfor a transaction of the type described in the definition of “Takeover Proposal” or such transaction is consummated (it being understood that for all purposes of this clause “(a),” all references in the definition of Takeover Proposal to twenty percent (20%) shall be deemed to be references to fifty percent (50%) instead), or recommends (ii) Section 8.1(d)(ii); provided that there did not exist any event or events that has had or would reasonably be expected to its stockholdershave a Parent Material Adverse Effect, a Competing Proposal either at the time of the action (or a Competing Proposal is consummatedfailure to act) giving rise to Parent’s termination right pursuant to Section 8.1(d)(ii) or at the time of such termination, then the Company shall (A) in the case of termination pursuant to clause (i) of this Section 8.4(a), within one (1) business day after Business Day following the occurrence earlier to occur of the applicable event described execution of such definitive agreement and consummation of such transaction or (B) in this the case of termination pursuant to clause (2ii) the Company shall of this Section 8.4(a), within one (1) Business Day of such termination, pay Parent a non-refundable fee in an amount equal to Parent Eighteen Million Dollars (or a Parent Subsidiary designated by Parent$18,000,000) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)Parent.
(vb) For If this Agreement shall be terminated pursuant to Section 8.1(c)(ii) (provided that there did not exist any event or events that has had or would reasonably be expected to have a Company Material Adverse Effect either at the avoidance time of doubtthe action (or failure to act) giving rise to the Company’s termination right pursuant to Section 8.1(c)(ii) or at the time of such termination), then within one (1) Business Day of such termination, Parent shall pay the Company the Termination Fee, payable by wire transfer of immediately available funds to an account designated by the Company.
(c) The parties acknowledge that the agreements contained in this Section 8.4 are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, the parties would not enter into this Agreement; accordingly, if either party fails to promptly pay its respective Termination Fee (the “non-paying party”), and, in no event shall order to obtain such payment the Company be obligated to pay other party commences a suit which results in a judgment against the non-paying party for the Termination Fee Fee, the non-paying party shall pay to the other party its costs and expenses (including attorney’s fees) in connection with such suit, together with interest on more than one occasionthe amount of the fee at the publicly announced prime rate of Citibank, N.A. in New York City from the date such fee was first payable to the date it is paid.
Appears in 2 contracts
Sources: Merger Agreement (Solexa, Inc.), Merger Agreement (Illumina Inc)
Termination Fee. The Company shall pay to CytRx a termination fee in an amount in cash equal to $1,500,000 (ithe “Termination Fee”) In in the event that (Ai) Parent the Company terminates this Agreement pursuant to Section 8.01(e); (ii) CytRx terminates this Agreement pursuant to Sections 8.01(f) or (g); (iii) CytRx terminates this Agreement pursuant to Section 8.01(c), provided that such termination is as a result of the Company’s breach of Section 6.03; or (iv) CytRx or the Company terminates this Agreement pursuant to Section 8.1(b)(i8.01(h), provided, in the case of this clause (iv), that (A) after the date hereof and prior to the Company Stockholders’ Meeting, an Acquisition Proposal has been publicly announced and not withdrawn or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) abandoned at the time of termination, and (B) within one year 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, with respect to or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence consummates such Acquisition Proposal. Payment of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of Fee under this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount 8.02 shall be paid by wire transfer of immediately available same-day funds to an account designated by CytRx, in writing by Parent (and, if any amount becomes payable the event of payment pursuant to clause (i) above on the date of termination of this Agreement, in the event of payment pursuant to clauses (ii) or (iii) above within three business days following the date of termination of this Agreement, and in the event of payment pursuant to clause (iv) above, on the date of the execution and delivery by the Company of the definitive agreement regarding such Acquisition Proposal. CytRx acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement or any document or instrument delivered in connection herewith, the rights set forth in clause (iii) of this Section 8.02 shall be the sole and exclusive remedy of CytRx, Merger Subsidiary and their respective affiliates against the Company or its Subsidiaries or any of their respective affiliates with respect to the Company’s breach of Section 6.03 of this Agreement (excluding any willful breach of such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingprovisions).
(v) 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 2 contracts
Sources: Merger Agreement (Innovive Pharmaceuticals, Inc.), Merger Agreement (Cytrx Corp)
Termination Fee. In the event that:
(i) In (x) prior to the event that Effective Time and after the date hereof, any Person shall have made an Acquisition Proposal, which proposal has been publicly disclosed and not withdrawn, or any Person shall have publicly announced an intention (Awhether or not conditional) Parent or the Company terminates to make an Acquisition Proposal, (y) thereafter this Agreement is terminated by any party pursuant to Section 8.1(b)(i7.01(c) without the Granite Stockholder Approval having been obtained or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii7.01(d)(ii) and (Bz) within one year after the date termination of this Agreement and prior Agreement, the Acquisition Proposal referred to in Section 7.02(a)(i)(x) above or any Acquisition Proposal with such Person making the Acquisition Proposal referred to in Section 7.02(a)(i)(x) above shall have been consummated or any definitive agreement with respect to such termination, a Competing Acquisition 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 abandoned, then if, within nine entered into (9) months provided that for purposes of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2z) the Company references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”); or
(ii) this Agreement is terminated by FNB pursuant to Section 7.01(b) (if such termination is based on a material breach of Section 5.04 or Section 5.08) or pursuant to Section 7.01(e); then Granite shall pay to Parent (or FNB a Parent Subsidiary designated by Parent) a termination fee of $69,750,000 in cash 450,000 (the “Termination Fee”). Solely for purposes ) (A) in the case of this Section 8.2(b)(i)clause (i) above, one Business Day after the term “Competing Proposal” shall have earlier of the meaning assigned execution of a definitive agreement with respect to, or the consummation of, any Acquisition Proposal referred to such term in Section 5.3(j)(i)sub-clause (i)(z) above, except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(B) in the case of a termination described in clause (ii) If above, one Business Day after the Company terminates this Agreement pursuant to delivery of the written notice of termination required by Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) 7.01. In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company Granite be obligated required to pay the Termination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (FNB United Corp.), Merger Agreement (Bank of Granite Corp)
Termination Fee. (ia) In the event that that:
(i) (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 date hereof and prior to the Shareholders’ Meeting (or prior to the termination of this Agreement if there has been no Shareholders’ Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i8.02(a) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) 8.02(c), and (BC) within twelve (12) months after the date termination 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 abandoned, then if, within nine (9) months of such terminationAgreement, the Company or any of its Subsidiaries consummates, or enters into a definitive agreement providing forin connection with, any Competing Transaction by a Third Party (in each case whether or recommends not the Competing Transaction was the same Competing Transaction referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2A)) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 8.2(b)(i8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50100%”.);
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii8.03(c), then the Company shall pay, or cause to be paid, to Parent or its designees an amount equal to US$340,000 (the “Company Termination Fee”) by wire transfer of same day funds as promptly as possible (but in each caseany event (x) within two (2) Business Days after such termination in the case of a termination referred to in clause (ii) above, following any time (y) at which Parent was entitled to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii)), within least one (1) business day after such termination, Business Day prior to and as a condition of the consummation by the Company shall pay 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 Parent in clause (i) above, or (z) prior to or concurrently with the termination of this Agreement in case of a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable termination pursuant to the preceding clauses (i), (ii) or clause (iii) above), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, ; it being understood that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasion.
(b) Parent will pay, or cause to be paid, to the Company an amount equal to US$680,000 (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 within five (5) Business Days following such termination by wire transfer of same day funds); it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(c) 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 (iii) without the agreements contained in this Section 8.06, the parties hereto would not have entered into this Agreement.
(d) (i) Subject to Section 9.08, the Equity Commitment Letter and the 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 the guarantee of such obligations pursuant to the 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, and the Sponsor, (B) the former, current and future direct or indirect holders of any equity, general 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, shareholders, stockholders, successors or assignees of Parent, Merger Sub, the Guarantor or the Sponsor, (C) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent, Merger Sub or any Guarantor or Sponsor, 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, shareholders, stockholders, successors or assignees of any of the foregoing (clauses (A) through (D) of this Section 8.06(e), 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 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(c), 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 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 Guarantee), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.06(b) and Section 8.06(c), or the Guarantor to the extent provided in the Guarantee.
Appears in 2 contracts
Sources: Merger Agreement (Tang Liang), Merger Agreement (Ossen Innovation Co. Ltd.)
Termination Fee. (ia) In the event that (Ai) the Company shall terminate this Agreement pursuant to Section 8.01(f), (ii) Parent shall terminate this Agreement pursuant to Section 8.01(c)(i) or (g), or (iii) Parent or the Company terminates shall terminate this Agreement pursuant to Section 8.1(b)(i8.01(e) or Section 8.1(b)(iii) or Parent terminates at any time during which this Agreement was terminable by Parent pursuant to Section 8.1(c)(iii8.01 (c)(i) and or (B) after the date of this Agreement and prior to such terminationg), 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated the Parent, by Parent) a fee wire transfer of immediately available funds, $69,750,000 14,500,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(iib) If In the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay to Parent event that (or a Parent Subsidiary designated by Parenti) 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 shall terminate this Agreement pursuant to Section 8.1(c)(i8.01(b) (other than an injunction, order, decree or ruling based on or related to any applicable antitrust or competition law or regulation), (c)(ii) or Section 8.1(c)(ii)(e), (ii) there shall have been publicly disclosed, directly or indirectly, by the Company or the proponent thereof, at or prior to the time of such termination a bona fide Acquisition Proposal with respect to the Company and (iii) a definitive agreement or letter of intent is entered into by the Company with respect to an Acquisition Proposal within one (1) business day after twelve months of such terminationtermination of this Agreement or an Acquisition Proposal otherwise is consummated within twelve months of such termination of this Agreement, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination FeeFee to Parent.
(ivc) In the event any amount that a Termination Fee is payable pursuant to the preceding clauses (i)Parent, (ii) or (iii), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company be obligated to shall pay the Termination Fee to Parent (i) if this Agreement is terminated pursuant to Section 8.03(a) on more than one occasion.the date of termination (it being understood that no termination by the Company shall be effective until the Termination Fee has been paid by the Company) and
Appears in 2 contracts
Sources: Merger Agreement (Convergys Corp), Merger Agreement (Intervoice Inc)
Termination Fee. (ia) In the event that that:
(i) (A) Parent a Takeover Proposal shall have been made, proposed or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) communicated, after the date of this Agreement and not withdrawn prior to such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to the Company Board Stockholders Meeting or prior to the Company’s stockholders termination of this Agreement if there has been no Company Stockholders Meeting, and not publicly (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) or by Parent pursuant to Section 7.1(c)(i) and unconditionally withdrawn or abandoned, then if, within nine (9C) months of such termination, the Company enters into a definitive agreement providing forwith respect to any Takeover Proposal, or recommends to its stockholders, a Competing Proposal or a Competing any Takeover Proposal is consummated, then in either case within one twelve (112) business day months after the occurrence date of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely Agreement; provided that for purposes of clause (c) of this Section 8.2(b)(i), 7.3(a)(i) the term reference to 20% in the definition of “Competing Takeover Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “references to 50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(d)(i7.1(d)(ii), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.; or
(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)(iii7.1(c)(ii); then, 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) In the event any amount is payable pursuant to the preceding clauses under clause (i), (ii) or (iii) of this Section 7.3(a), such amount the Company shall be paid pay as directed by Parent the Company Termination Fee (as defined below), by wire transfer of immediately available funds (x) in the case of Section 7.3(a)(iii), within two (2) Business Days after such termination, (y) prior to an account designated in writing by Parent (and, or currently with such termination if any amount becomes payable pursuant to any such clauseSection 7.1(d)(ii), such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account (z) in writingthe case of Section 7.3(a)(i).
, two (v2) For Business Days after the avoidance earlier of doubt, the entry into a Company Acquisition Agreement or the consummation of 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, “Company Termination Fee” shall mean a cash amount equal to $525,000. In the event that the Parent or Merger Sub shall receive full payment pursuant to this Section 7.3(a), 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 Parent and Merger Sub or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment or termination hereof) or any matter forming the basis for such termination, and neither the Parent nor Merger Sub nor any other Person shall be entitled to bring or maintain any Action against the Company arising out of or in connection with this Agreement, any of the transactions contemplated hereby (or the abandonment or termination hereof) or any matters forming the basis for such termination.
(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, 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 $525,000 in cash (the “Parent Termination Fee”), such payment to be made by wire transfer of same day funds within five (5) 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 (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, 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 2 contracts
Sources: Merger Agreement (Graham Holdings Co), Merger Agreement (SmartPros Ltd.)
Termination Fee. Notwithstanding any provision in this Agreement to the contrary:
(a) If (i) In the event that (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(i8.1(g), (ii) or Section 8.1(b)(iii) or Parent terminates this Agreement is terminated by Parent pursuant to Section 8.1(c)(iii8.1(h) and or (Biii) at any time after the date of this Agreement and prior Agreement, (A) a Company Alternative Proposal is publicly proposed or disclosed by the Person or group making such Company Alternative Proposal (or, in the case of a termination pursuant to such terminationSection 8.1(b) or Section 8.1(f), a Competing Proposal shall have been is publicly proposed or disclosed or otherwise publicly communicated to the Company Board or of Directors of the Company’s stockholders ) prior to and not publicly and unconditionally irrevocably withdrawn or abandoned, then if, within nine (9) months at the time of such termination, the Company enters into a definitive agreement providing for, Meeting or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then resubmitted within one (1) business day three months after the occurrence date of the applicable event described in this clause Company Meeting, and (2B) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 (x) by Parent or the Company pursuant to Section 8.1(b)(i8.1(b) (but only if at such time Parent would not be prohibited from terminating this Agreement by application of the proviso of Section 8.1(b)), (y) by Parent or the Company pursuant to Section 8.1(b)(iii8.1(d), or (z) or by Parent pursuant to Section 8.1(c)(iii8.1(f), and (C) prior to the first anniversary of the termination of this Agreement, any definitive agreement providing for a Qualifying Transaction shall have been entered into (irrespective of whether such agreement was entered into with the same Person or group who made the Company Alternative Proposal referred to in each caseclause (A) above), following then in any time at which Parent was entitled to terminate this Agreement pursuant to such event described in Section 8.1(c)(i8.3(a)(i), Section 8.3(a)(ii) or Section 8.1(c)(ii8.3(a)(iii)), within one (1) business day after such termination, the Company shall pay to Parent a fee of $18,330,425 (or a Parent Subsidiary designated by Parent) the “Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid in cash by wire transfer of in immediately available funds funds, such payment to an account designated be made in writing the case of (1) Section 8.3(a)(i) as a condition to the termination of this Agreement, (2) Section 8.3(a)(ii) within two Business Days following the termination of this Agreement and (3) Section 8.3(a)(iii) within two Business Days following the execution of any definitive agreement in respect of a Qualifying Transaction and less any amounts previously paid to Parent by Parent (andthe Company pursuant to Section 8.3(b), if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless any. It is understood and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, agreed that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion. After payment of the Termination Fee is made, the Company shall have no further liability to Parent or Merger Sub with respect to this Agreement or the transactions contemplated hereby, including the Merger (provided that nothing herein shall release any party from liability for intentional breach of this Agreement or for fraud or as provided in the Confidentiality Agreement).
(b) If this Agreement is terminated by Parent pursuant to Section 8.1(f) (other than for a termination in respect of the breach of a representation or warranty occurring after (and not as of) the date of this Agreement based on facts, events or circumstances occurring after (and not as of or prior to) the date of this Agreement), the Company shall pay to Parent an amount equal to the sum of the Transaction Expenses actually incurred by Parent at or prior to the termination of this Agreement for which Parent has not theretofore been reimbursed by the Company in cash by wire transfer in immediately available funds (provided that nothing herein shall release any party from liability for intentional breach of this Agreement or fraud or under the Confidentiality Agreement), such payment to be made following such termination and within two Business Days following delivery to the Company of notice of demand for such payment accompanied by reasonable supporting documentation of such Transaction Expenses. For purposes of this Agreement, “Transaction Expenses” means all reasonable and documented out-of-pocket expenses, fees and costs (including all reasonable and documented out-of-pocket fees and expenses of counsel, accountants, investment bankers, experts and consultants and all filing fees paid to any Governmental Authority) incurred by Parent or on its behalf in connection with or related to the transactions contemplated by this Agreement, including the Merger, including in connection with Parent’s due diligence investigation and the authorization, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the Merger; provided, however, that the Company shall not have to pay Transaction Expenses in excess of $2.0 million in the aggregate (the “Transaction Expense Cap”) (which Transaction Expense Cap shall be increased if Parent receives a Request for Additional Information pursuant to the HSR Act (a “Second Request”), but only to the extent Parent incurs additional Transaction Expenses from and after the date of such Second Request; provided, however, that the Transaction Expense Cap shall not exceed $5.0 million).
Appears in 2 contracts
Sources: Merger Agreement (FGX International Holdings LTD), Merger Agreement (Essilor International /Fi)
Termination Fee. (ia) In the event that:
(i) 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 a bona fide Takeover Proposal shall have been publicly made, publicly proposed or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) otherwise publicly communicated after the date of this Agreement and not withdrawn prior to such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to the earlier of the completion of the Company Board Stockholders’ Meeting (including any adjournment or postponement thereof) and the Company’s stockholders time of termination and not publicly and unconditionally withdrawn or abandoned, then if, (B) within nine (9) twelve months of such terminationthe date this Agreement is terminated, the Company enters into a definitive agreement providing for, with respect to a Takeover Proposal (whether or recommends not such Takeover Proposal was the same Takeover Proposal referred to its stockholders, a Competing Proposal or a Competing in clause (A)) and such Takeover Proposal is consummatedsubsequently consummated (even if after such twelve-month period); provided that, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of clauses (A) and (B) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1525%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If the Company terminates this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(i7.01(c)(ii) or (B) by the Company pursuant to Section 7.01(d)(ii); then, concurrently with in any such terminationevent under clause (i) or (ii) of this Section 7.03(a), the Company shall pay the Company Termination Fee to Parent or its designee by wire transfer of same day funds (or a Parent Subsidiary designated by Parentx) in the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to case of 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)7.03(a)(ii)(A), within one (1) two business day days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii)(B), (ii) simultaneously with such termination or (iiiz) in the case of Section 7.03(a)(i), such amount shall be paid by wire transfer within two business days after the consummation of immediately available funds the Takeover Proposal referred to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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 2 contracts
Sources: Merger Agreement (Abbott Laboratories), Merger Agreement (Alere Inc.)
Termination Fee. (a) The Company will pay to Buyer, by wire transfer of immediately available funds, an amount equal to $ 5,500,000 (the “Termination Fee”) if this Agreement is terminated as follows:
(i) In the event that (A) Parent or if the Company shall terminate this Agreement pursuant to Section 8.1(f), then the Company will pay the Termination Fee on the business day following such termination, and such termination shall not be effective until such payment is made;
(ii) if Buyer terminates this Agreement pursuant to Section 8.1(b)(i8.1(g), then the Company will pay the Termination Fee on the business day following such termination; or
(iii) if (A) the Company or Section 8.1(b)(iii) or Parent Buyer terminates this Agreement pursuant to Section 8.1(c)(iii8.1(c) and or 8.1(d) or (B) Buyer terminates this Agreement pursuant to Section 8.1(e) and after the date of this Agreement hereof and prior to such termination, a Competing Proposal any Third Party shall have been publicly disclosed or otherwise publicly communicated made to the Company Board or its stockholders (in the Company’s stockholders case of a termination by the Company or Buyer pursuant to Section 8.1(d) or by Buyer pursuant to Section 8.1(e)) or publicly announced (in the case of a termination by the Company or Buyer pursuant to Section 8.1(c)) a Takeover Proposal and not publicly and unconditionally withdrawn within 12 months following termination of this Agreement, any transaction included in the definition of Takeover Proposal is consummated or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive an agreement providing for, or recommends to its stockholders, for such a Competing Proposal or a Competing Proposal is consummatedtransaction, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company be obligated to will pay the Termination Fee on more than one occasionupon the earlier of the consummation of such transaction or the execution of such agreement.
(b) The Company acknowledges that the agreements contained in this Section 8.5 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Buyer would not enter into this Agreement.
(c) The Company shall pay (as incurred) all expenses, including reasonable fees and expenses of counsel, that Buyer may incur in enforcing the obligations provided for in this Section 8.5.
Appears in 2 contracts
Sources: Merger Agreement (Jazz Pharmaceuticals Inc), Merger Agreement (Orphan Medical Inc)
Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the The Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash 70,000,000 (the “Termination Fee”). Solely for purposes , by wire transfer of this Section 8.2(b)(i)immediately available funds to an account or accounts designated in writing by Parent, in the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.event that:
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(iii) (or A) this Agreement is terminated by Parent or the Company pursuant to (1) Section 8.1(b)(i) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the last proviso to Section 8.1(b)(i)) or (2) Section 8.1(b)(iii); (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, an Acquisition Proposal shall have been publicly announced or shall have become publicly disclosed or publicly known and such Acquisition Proposal has not been publicly and unconditionally withdrawn prior to the date that is five (5) Business Days prior to (1) in the case of clause (A)(1), such termination of this Agreement or (2) in the case of clause (A)(2), the Company Stockholders’ Meeting; and (C) within twelve (12) months following such termination of this Agreement, (x) the Company enters into a definitive agreement with any third party with respect to an Acquisition Transaction or (y) an Acquisition Transaction is consummated; in which case the Termination Fee shall be payable within two (2) Business Days after the earlier of the events in clause (C)(x) or (y);
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii), in which case the Termination Fee shall be payable concurrently with and as a condition to the effectiveness of such termination; or
(iii) this Agreement is terminated by Parent pursuant to Section 8.1(c)(iii8.1(d)(ii), in each case, following any time at which Parent was entitled to terminate this Agreement pursuant to Section 8.1(c)(icase the Termination Fee shall be payable within two (2) or Section 8.1(c)(ii)), within one (1) business day Business Days after such termination, . For purposes of the Company shall pay references to Parent (an “Acquisition Proposal” or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (ian “Acquisition Transaction” in Section 8.3(b)(i), all references to “twenty percent (ii) 20%)” or “eighty percent (iii80%), such amount ” in the definition of “Acquisition Transaction” shall be paid by wire transfer of immediately available funds deemed to an account designated in writing by Parent be references to “fifty percent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing50%).
(v) 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 2 contracts
Sources: Merger Agreement (Ambrx Biopharma, Inc.), Merger Agreement (Ambrx Biopharma, Inc.)
Termination Fee. (i) In the event that If DGAC is not in material breach of its obligations under this Agreement and if (x) (A) Parent this Agreement is terminated by DGAC or the Company terminates this Agreement pursuant to Section 8.1(b)(i9.1(b) or Section 8.1(b)(iii) or Parent terminates this Agreement (and, in the event such termination is pursuant to clause (i) of Section 8.1(c)(iii9.1(b), the conditions set forth in Section 8.1(a), Section 8.1(b) and Section 8.2 were satisfied or waived on or prior to the date of such termination), (B) after the date of this Agreement and at or prior to the time of such termination, termination a Competing Takeover Proposal shall have been disclosed, announced, commenced, submitted or made and the same shall have been publicly disclosed or otherwise publicly communicated to the Company Board or the Company’s stockholders announced, and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of after such termination, termination the Company enters into a definitive agreement providing for, or recommends to its stockholdersconsummates, a Competing Proposal Company Acquisition Transaction with any person other than DGAC or a Competing Proposal any affiliate of DGAC, (y) this Agreement is consummatedterminated by DGAC pursuant to Section 9.1(d), then within one or (1z) business day after this Agreement is terminated by the occurrence Company pursuant to Section 9.1(g), then, in the case of the applicable event described in this clause each of (2x), (y) and (z), the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 DGAC, in cash at the applicable time specified in the next two sentences, a non-refundable fee in the amount of One Hundred Fifty Thousand Dollars ($150,000) (the “"Termination Fee”") plus all Out-of-Pocket Expenses pursuant to Section 9.3(a), if any). Solely for purposes In the case of termination of this Agreement pursuant to Section 9.1(b), the Termination Fee and Out-of-Pocket Expenses referred to in the previous sentence shall be paid by the Company upon the execution of such definitive agreement. In the case of termination of this Agreement by DGAC pursuant to Section 9.1(d), or by the Company pursuant to Section 9.1(g), the Termination Fee and Out-of-Pocket Expenses referred to in the first sentence of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein 9.3(b)(i) shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”paid by the Company within two (2) business days after such termination.
(ii) If The Company acknowledges that the agreements contained in this Section 9.3(b) are an integral part of the transaction contemplated by this Agreement, and that, without these agreements, DGAC would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 9.3(b) and, in order to obtain such payment, DGAC makes a claim that results in a judgment against the Company for the amounts set forth in this Section 9.3(b), the Company shall pay to DGAC its costs and expenses (including attorneys' fee and expenses) in connection with such suit, together with interest per annum on the amounts set forth in this Section 9.3(b) at the prime rate of Citibank, N.A. in effect from time to time from the date such payment was required to be paid to the date it is paid. Payment of the fees and expenses described in this Section 9.3 shall not be in lieu of damages incurred in the event of willful breach of this Agreement.
(iii) In the event the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay to Parent (9.1(f) or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent if DGAC terminates this Agreement for any reason not otherwise enumerated in this Article IX, DGAC shall make a nonrefundable cash payment to the Company, in an amount equal to all reasonable actual documented fees and expenses (including all attorneys' fees, accountants' fees (if any), Special Committee directors' fees, financial advisory fees (if any) and filing fees) that have been paid or that have become due and payable or incurred obligations by or on behalf of the Company in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger; provided, however, that such nonrefundable cash payment shall not exceed Two Hundred Thousand Dollars ($200,000). Notwithstanding anything to the contrary herein, the nonrefundable cash payment referred to in the immediately preceding sentence shall be credited against any amount of damages awarded to the Company as a result of such termination and any damages awarded to the Company as a result of such termination shall be credited against any subsequent payment 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)subsection, 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company be extent DGAC is also obligated hereunder to pay the Termination Fee on more than one occasionsuch amount.
Appears in 2 contracts
Sources: Merger Agreement (Disc Graphics Inc /De/), Merger Agreement (Dg Acquisition Corp)
Termination Fee. (ia) In the event that that:
(i) (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 date hereof and prior to the termination of this Agreement, (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i8.02(a) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) 8.02(b), and (BC) within twelve (12) months after the date termination 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 abandoned, then if, within nine (9) months of such terminationAgreement, the Company or any of its Subsidiaries consummates, or enters into a definitive agreement providing forin connection with, any Competing Transaction by a Third Party (in each case whether or recommends not the Competing Transaction was the same Competing Transaction referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2A)) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided, that for purposes of this Section 8.2(b)(i8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50100%”.);
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 8.04 (other than Section 8.04(a) solely due to a breach of Section 6.06); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(i8.03(c) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii8.03(d), 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, then the Company shall pay pay, or cause to be paid, to Parent or its designees an amount in cash equal to US$2,880,000 (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid by wire transfer of immediately available same day funds as promptly as possible (but in any event (x) within two (2) Business Days after such termination in the case of a termination referred to an account designated in writing clause (ii) above, (y) at least two (2) Business Days prior to and as a condition of the consummation by Parent 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 (andi) above, if any amount becomes payable or (z) prior to or concurrently with the termination of this Agreement in case of a termination pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingclause (iii) above).
(v) For the avoidance of doubt, ; it being agreed that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasiononce.
(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 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 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 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 (iii) without the agreements contained in this Section 8.06, 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 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 the extent 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. (ia) In the event that this Agreement is terminated by:
(i) 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 or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such termination, a Competing Takeover Proposal shall have been publicly disclosed disclosed, announced, commenced, submitted or otherwise publicly communicated made; (B) such Takeover Proposal shall not have been withdrawn at least five days prior to the Company Board or Stockholders Meeting; and (C) within 180 days after the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months date of such terminationthe termination of this Agreement, the Company enters into a definitive agreement providing forand the Person who had commenced, submitted or recommends to its stockholdersmade such Takeover Proposal consummate an Acquisition Transaction, a Competing Proposal or a Competing Proposal is consummatedthen, then within one in the case of clause “(1) business day after i)” and clause “(ii)” of this sentence, at the occurrence time of termination or, in the case of clause “(iii)” of this sentence, at the time of consummation of the applicable event described Acquisition Transaction referred to in this clause ‘‘(2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”iii). Solely for purposes ” of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such terminationsentence, the Company shall pay to Parent Parent, a fee of $2,800,000, in cash (or a Parent Subsidiary designated reduced by Parent) the Termination Fee.
(iii) If Parent terminates this Agreement any amounts payable 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)(ii7.3(b)), 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) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount . Such payment shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)Parent.
(vb) 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 Merger Sub in an amount not to exceed $500,000. Such payment shall be made by wire transfer of immediately available funds to an account to be designated by Parent within 10 business days of the Company’s receipt of adequate documentation of the amount of such Expenses.
(c) For the avoidance purposes of doubtthis Agreement, an “Acquisition Transaction” means any transaction or series of transactions involving: (A) an acquisition (whether in no event shall a single transaction or a series of related transactions) of assets of the Company be obligated and its Subsidiaries having a fair market value equal to pay 50% or more of the Termination Fee on consolidated assets of the Company and its Subsidiaries, taken as a whole; (B) a 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) 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 one occasion50% of any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
Termination Fee. If:
(ia) In the event that (A) Parent or the Company terminates Acquisitionco shall terminate this Agreement pursuant to Section 8.1(b)(i7.2(b); or
(b) or Section 8.1(b)(iii) or Parent terminates the Company shall terminate this Agreement pursuant to Section 8.1(c)(iii7.2(c); or
(c) either the Company or Acquisitionco shall terminate this Agreement pursuant to Section 7.2(d)(ii) in circumstances where the Arrangement Resolution or the Rights Plan Waiver Resolution have not received the required approval at the Meeting and: (i) a bona fide Acquisition Proposal has been publicly announced by any person other than Acquisitionco or Parent prior to the Meeting and not withdrawn, and (Bii) either (x) a transaction contemplated by an Acquisition Proposal is consummated after the date such termination 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 expiration of 12 months following the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months date of such termination, termination of this Agreement or (y) the Company enters into a definitive agreement providing forwith respect to a transaction contemplated by an Acquisition Proposal, or recommends after such termination of this Agreement and prior to its stockholdersthe expiration of 12 months following the date of such termination of this Agreement, a Competing and thereafter consummates such transaction; provided, however, that for purposes of this Section 7.5(c), all references to “20%” in the definition of Acquisition Proposal or a Competing Proposal is consummated, shall be deemed to refer to “50%”; then within one (1) business day after the occurrence of the applicable event described in this clause (2) any such case the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) Acquisitionco 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)Fee in immediately available funds, in each casenet of any applicable Taxes, 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) In the event any amount is payable 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 by Acquisitionco. Such payment shall be due (A) in writing the case of a termination specified in Section 7.5(a), within two Business Days after written notice of termination by Parent Acquisitionco, (andB) in case of a termination specified in Section 7.5(b), if any amount becomes payable pursuant on or prior to any such clausethe termination of this Agreement, such amount or (C) in the case of a termination specified in Section 7.5(c), on the day of the consummation of the transaction referred to therein. The Company shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on make more than one occasionpayment pursuant to this Section 7.5.
Appears in 1 contract
Sources: Combination Agreement (Aspreva Pharmaceuticals CORP)
Termination Fee. (ia) In the event that (i) (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 this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) time of the Stockholders’ Meeting, and (B) after the date of this Agreement is terminated by Seller pursuant to Section 10.1(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 10.1(b)(i) or Section 10.1(b)(ii), by Buyer or Seller pursuant to Section 10.1(d), and prior to (C) within twelve months after such termination, any definitive agreement providing for a Competing Proposal Qualifying Transaction shall have been publicly disclosed or otherwise publicly communicated entered into and consummated, (ii) this Agreement is terminated by Seller pursuant to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing forSection 10.1(e), or recommends (iii) this Agreement is terminated by Buyer pursuant to its stockholdersSection 10.1(f), a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company Seller shall pay to Parent (Buyer a non-refundable termination fee, without offset or a Parent Subsidiary designated by Parent) a fee reduction of any kind, in an amount of $69,750,000 in cash 2,619,000 (the “Termination Fee”). Solely for purposes , such payment to be made in the case of this (x) Section 8.2(b)(i10.3(a)(i) upon consummation of a Qualifying Transaction, (y) Section 10.3(a)(iii), the term “Competing Proposal” shall have the meaning assigned to within two Business Days of such term in termination, or (z) Section 5.3(j)(i10.3(a)(ii), except within two Business Days of such termination; provided that all references to “15%” therein such termination shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If have occurred only upon the Company terminates this Agreement pursuant to expiration of the five Business Day notice period provided for in Section 8.1(d)(i6.4(c), concurrently with such termination, it being understood that in no event shall Seller be required to pay the Company shall pay fee referred to Parent (or a Parent Subsidiary designated by Parentin this Section 10.3(a) the on more than one occasion. Any 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) In the event any amount is Fee payable pursuant to the preceding clauses (i), (iithis Section 10.3(a) or (iii), such amount 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 (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)Seller.
(vb) For Notwithstanding anything to the avoidance of doubtcontrary in this Agreement, in no the event shall the Company be obligated to pay that the Termination Fee is paid by Seller pursuant to Section 10.3(a), Seller shall not 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 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 in order to obtain such payment, Buyer commences a suit that results in a judgement against Seller for the amounts set forth in Section 10.3, or any portion thereof, Seller shall pay Buyer its costs and expenses (including reasonable attorneys’ fees) in connection with such a suit, together with interest on more than one occasionthe amount or such portion thereof as the U.S. prime rate as shown at the end of the trading day on Bloomberg screen BTMM or PRIME INDEX HP, whichever is higher, on the date such payment was required to be made through the date of such payment.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Thestreet, Inc.)
Termination Fee. (a) If: (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 validly terminated by Parent or the Company pursuant to Section 8.1(b)(i7.1(b) or Section 8.1(b)(iii7.1(d), (B) 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 time of the termination of this Agreement), and (C) the Company consummates a Specified Acquisition Transaction within 12 months after such termination or the Company enters into a definitive agreement within 12 months after such termination providing for a Specified Acquisition Transaction that is subsequently consummated; (ii) this Agreement is terminated by Parent pursuant to Section 8.1(c)(iii7.1(e), in each case, following any time at which Parent was entitled to terminate ; or (iii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii)7.1(f), within one then in the case of each of clauses “(1) business day after such termination, i)” through “(iii),” the Company shall pay or cause to Parent be paid to Parent, in cash at the time specified in the next sentence, a termination fee in the amount of $16,500,000 (or a Parent Subsidiary designated by Parent) 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).
(ivb) In If (i) this Agreement is validly terminated by the event any amount is payable Company pursuant to the preceding clauses (iSection 7.1(j), or (ii) this Agreement is validly terminated by Parent or (iiithe 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), 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 pursuant to Section 7.1(j), within two business days following the termination of this Agreement, and in the case of a termination of this Agreement by Parent pursuant to Section 7.1(b), concurrently with such amount termination.
(c) Any Company Termination 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 (and, if any amount becomes payable pursuant to any such clause, such amount Termination Fee due under Section 7.3(b) shall not be or become due unless and until Parent has provided such paid by wire transfer instructions for such of immediately available funds to an account designated account in writing).
(v) writing by the Company. For the avoidance of doubt: (i) 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, 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 other 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, as applicable) at a rate per annum equal to the “prime rate” (as published in the 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 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 event circumstances shall the Company or Parent be obligated permitted or entitled to pay receive both a grant of specific performance that results in the Acceptance Time or the Effective Time occurring and the Parent Termination Fee on more or the Company Termination Fee, as applicable.
(e) Notwithstanding anything to the contrary in this Agreement, 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 Company and the Company Related Parties against the Parent Related Parties or the Lender Related Parties for any losses, damages, 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 Agreement), 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 or any other Company Related Party seek, directly or indirectly, to recover against any Parent Related Parties (other than one occasionParent 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 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 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 the Company), compel payment by any Company Related Party (other than the 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 action (whether any such remedy is sought in equity or at law, in 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 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 Debt Commitment Letter.
Appears in 1 contract
Sources: Merger Agreement (Xenoport Inc)
Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the The Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of an amount equal to $69,750,000 49,000,000 in cash (the “Termination Fee”). Solely for purposes , by wire transfer of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned immediately available funds to such term an account or accounts designated in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.writing by Parent:
(iii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay to Parent within two (or a Parent Subsidiary designated 2) Business Days after demand by Parent, in the event that (A) 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)(i8.1(b) or Section 8.1(b)(iiiand the Minimum Condition has not been satisfied prior to such termination (provided, that (x) or Parent the conditions to the Offer set forth in clause (B) and clause (C)(1) of Annex A are satisfied at the time of such termination pursuant to Section 8.1(c)(iii8.1(b), in each case, following any time at which Parent was entitled and (y) the right to terminate this Agreement pursuant to Section 8.1(c)(i8.1(b) or Section 8.1(c)(ii)is then available to Parent), (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, a Competing Acquisition Transaction (as defined below) shall have been publicly announced or shall have become publicly disclosed and, in either case, shall not have been withdrawn or otherwise abandoned, and (C) within one nine (19) business day after months following such terminationtermination of this Agreement, either (y) the Company enters into a definitive agreement with respect to a Competing Acquisition Transaction or (z) a Competing Acquisition Transaction is consummated. For purposes of the foregoing, a “Competing Acquisition Transaction” shall pay have the same meaning as an “Acquisition Transaction” except that all references therein to Parent “more than twenty percent (or a Parent Subsidiary designated by Parent) the Termination Fee20%)” shall be deemed to be references to “more than fifty percent (50%).”
(ivii) In the event any amount that this Agreement is payable terminated by the Company pursuant to the preceding clauses (iSection 8.1(f), (ii) or (iii), as a condition to the effectiveness of such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)termination.
(viii) For In the avoidance of doubtevent that this Agreement is terminated by Parent pursuant to Section 8.1(g), in no event shall the Company be obligated to pay the Termination Fee on more than one occasionwithin two (2) Business Days after demand by Parent following such termination.
Appears in 1 contract
Sources: Merger Agreement (Relypsa Inc)
Termination Fee. (i) a. In the event that this Agreement is terminated by the Company pursuant to Section 7.01(d)(i) (ASuperior Proposal), the Company shall pay or cause to be paid to Parent (or one or more Persons designated by Parent) the Termination Fee immediately prior to or concurrently with the termination of this Agreement.
b. In the event that this Agreement is terminated by Parent pursuant to Section 7.01(c)(i)(A) (Recommendation Change), the Company shall pay or cause to be paid to Parent (or one or more Persons designated by Parent) the Termination Fee within five (5) Business Days after such termination.
c. In the event that this Agreement is terminated (i) by Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i7.01(b)(i) (End Date) or Section 8.1(b)(iii7.01(b)(iii) (No Vote) or by Parent terminates this Agreement pursuant to Section 8.1(c)(iii7.01(c)(ii) and (BCompany Breach), (ii) after the date of this Agreement and prior to such termination, a Competing bona fide Acquisition Proposal shall have been publicly disclosed or otherwise publicly communicated to the Company Board after the date of this Agreement (A) in the case of termination pursuant to Section 7.01(b)(i) (End Date) or Section 7.03(c)(ii) (Company Breach), prior to the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months date of such termination, or (B) in the case of termination pursuant to Section 7.01(b)(iii) (No Vote), prior to the date of the Company Shareholders Meeting, and (iii) within twelve (12) months after the date that this Agreement is so terminated, the Company enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing any Acquisition Proposal or a Competing consummates any Acquisition Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided that for purposes of clause (iii) of this Section 8.2(b)(i7.03(c), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of Acquisition Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, then the Company shall pay or cause to be paid to Parent (or a Parent Subsidiary one or more Persons designated by Parent) the Termination FeeFee within five (5) Business Days after the date on which the Company consummates such Acquisition Proposal.
(iii) If Parent terminates d. Notwithstanding anything to the contrary in this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii) (or this Agreement Agreement, the Parties hereby acknowledge that in the event that the Termination Fee becomes payable and is terminated paid by Parent or the Company pursuant to this Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii)7.03, 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasionshall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under, arising from or concerning this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Limeade, Inc)
Termination Fee. (ia) In the event that that:
(i) (A) Parent or this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i8.1(b) or by Parent pursuant to Section 8.1(e) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and 8.1(g); (B) a bona fide Company Acquisition Proposal shall have been made, proposed or otherwise communicated to the Company in writing after the date of this Agreement and prior to but before the date of such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to and (C) within six months following the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such terminationdate this Agreement is terminated, the Company enters into a definitive agreement providing forwith respect to such Company Acquisition Proposal; provided that, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of clauses (B) and (C) of this Section 8.2(b)(i8.3(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1510%” therein in the definition of Company Acquisition Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If the Company terminates this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(i8.1(i) or (B) by the Company pursuant to Section 8.1(j); then, concurrently with in any such terminationevent under clause (i) or (ii) of this Section 8.3(a), the Company shall pay the Termination Fee to Parent or its designee by wire transfer of same day funds (or a Parent Subsidiary designated by Parentx) in the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to case of 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)8.3(a)(ii)(A), within one (1) business day two Business Days after such termination, (y) in the case of Section 8.3(a)(ii)(B), simultaneously with or prior to such termination or (z) in the case of Section 8.3(a)(i), upon consummation of the Company shall pay Acquisition Proposal referred to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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. (a) The Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee if any of the following occur:
(i) In this Agreement is terminated by the event that Company pursuant to Section 7.1(c);
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d); or
(iii) (A) either Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i7.1(b) or Section 8.1(b)(iii) 7.1(e), or Parent terminates this Agreement pursuant to Section 8.1(c)(iii7.1(g) and due to a breach of, or a failure to perform or comply with, one or more covenants or agreements set forth in Section 5.3, Section 5.4 or Section 5.5, (B) a bona fide Acquisition Proposal (provided for purposes of this clause (iii), all references to “15%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”) has been publicly disclosed or, in the case of termination pursuant to Section 7.1(b) or Section 7.1(g), made known to the Company Board after the date of this Agreement and and, if publicly disclosed, has not been publicly withdrawn (x) in the case of termination pursuant to Section 7.1(b) or Section 7.1(g), prior to such terminationthe Outside Date or (y) in the case of termination pursuant to Section 7.1(e), a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated at least two (2) Business Days prior to the date of the Company Board or the Company’s stockholders Meeting, and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of after such termination, the Company enters and/or its Subsidiaries shall have entered into a definitive agreement providing forwith respect to, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then an Acquisition Proposal.
(b) Any Company Termination Fee due under this Section 7.2 shall be paid to Parent (or its designee) by wire transfer of same-day funds (i) in the case of Section 7.2(a)(i), substantially concurrently with such termination, (ii) in the case of Section 7.2(a)(ii), within one two (12) business day Business Days after such termination and (iii) in the case of Section 7.2(a)(iii), within three (3) Business Days after the occurrence entry into the definitive agreement with respect to, or consummation of, the Acquisition Proposal described in Section 7.2(a)(iii) (it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion).
(c) Each party acknowledges that the agreements contained in this Section 7.2 are an integral part of the applicable event described Transactions and that, without these agreements, the parties would not enter into this Agreement. Each party further acknowledges that the Company Termination Fee if, as and when required to be paid, is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub in the circumstances in which the Company Termination Fee is payable, and which do not involve actual and intentional fraud or Willful and Material Breach, for the efforts and resources expended and opportunities foregone while negotiating this clause Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions. In addition, if the Company fails to pay in a timely manner any amount due pursuant to Section 7.2(a), then (2i) the Company shall reimburse Parent for all reasonable and documented out-of-pocket costs and expenses (including disbursements and fees of counsel) incurred in the collection of such overdue amounts, including in connection with any related claims, actions or proceedings commenced and (ii) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (interest on the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement amounts payable pursuant to Section 8.1(d)(i7.2(a) from and including the date payment of such amounts were 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 or a lesser rate that is the maximum then-permitted by applicable Law. Notwithstanding anything to the contrary in this Agreement, except the right to seek monetary damages for actual and intentional fraud or for Willful and Material Breach occurring prior to the valid termination of this Agreement, and without limiting Parent’s or Merger Sub’s right to specific performance in accordance with Section 9.11, (A) the Company Termination Fee (and any other amounts expressly contemplated by Section 7.2, if any) shall be the sole and exclusive remedy available to Parent, its Subsidiaries (including Merger Sub), concurrently with any financing sources of Parent or its Subsidiaries (including the Financing Parties), and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, affiliates, affiliated (or commonly advised) funds, representatives, agents or any their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, affiliate, representative, agent, assignee or successor of any of the foregoing against the Company, its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, affiliates, affiliated (or commonly advised) funds, representatives, agents or any their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, affiliate, representative, agent, assignee or successor of any of the foregoing (collectively, “Company Related Parties”) for any loss or damage suffered as a result of the failure of the Merger and the other Transactions to be consummated or for a breach of, or failure to perform under, this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or therewith, and upon payment of such terminationamounts, none of the Company Related Parties shall pay to Parent (have any further liability or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) obligation, whether in equity or Section 8.1(c)(ii) (at law, in contract, in tort 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)otherwise, in each case, following any time at which Parent was entitled to terminate in connection with this Agreement and the Transactions in circumstances in which the Company Termination Fee becomes due and payable and is paid in accordance with this Agreement, and (B) upon Parent’s receipt of the full Company Termination Fee (and any other amounts expressly contemplated by Section 7.2, if any) pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii)), within one (1) business day after such termination, this Section 7.2 in circumstances in which the Company Termination Fee is payable, none of the Company Related Parties shall pay have any further liability or obligation relating to Parent (or a Parent Subsidiary designated by Parent) arising out of this Agreement or the Termination Fee.
(iv) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) Transactions. For the avoidance of doubt, (a) Parent may seek specific performance to cause the Company to consummate the Transactions in accordance with Section 9.11 and the payment of the Company Termination Fee pursuant to Section 7.2(a), but in no event shall Parent be entitled to both (i) specific performance to cause the Company to consummate the Transactions in accordance with Section 9.11 and (ii) the payment of the Company Termination Fee pursuant to Section 7.2(a), and (b) the Company may pursue both a grant of specific performance in accordance with Section 9.11 and the payment of other monetary damages, but in no event shall Parent or Merger Sub be obligated to both (i) specifically perform the terms of this Agreement and (ii) pay the Termination Fee on more than one occasionother monetary damages.
Appears in 1 contract
Termination Fee. (ia) In the event that that:
(i) this Agreement is terminated by Parent pursuant to Section 9.01(e);
(ii) (A) Parent a Company Acquisition Proposal shall have been made, proposed or otherwise communicated to the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to but before the date of such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to (B) this Agreement is terminated by the Company Board or the Company’s stockholders Parent pursuant to Section 9.01(b) or by Parent pursuant to Section 9.01(f) or Section 9.01(g), and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such terminationfollowing the date on which this Agreement is terminated, the Company enters into a definitive agreement providing foragreement, arrangement or understanding with respect to such Company Acquisition Proposal with the person or all or any part of the “group” (as defined in the Exchange Act) who proposed or otherwise communicated such Company Acquisition Proposal, or recommends to its stockholderson whose behalf such Company Acquisition Proposal was proposed or otherwise communicated; provided, a Competing Proposal or a Competing Proposal is consummatedthat, then within one (1) business day after the occurrence of the applicable event described in this for purposes clause (2A) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i9.03(a)(ii), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1510%” therein in the definition of Company Acquisition Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(iiiii) If this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(d)(i9.01(i); then, concurrently with in any such terminationevent, the Company shall pay the Termination Fee to Parent or its designee by wire transfer of same day funds (or a Parent Subsidiary designated by Parentx) in the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to case of 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)9.03(a)(i), within one two (12) business day Business Days after such termination, (y) in the case of Section 9.03(a)(ii), upon entry into the definitive agreement, arrangement or understanding with respect to the Company shall pay Acquisition Proposal referred to Parent therein and (or a Parent Subsidiary designated by Parentz) in the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 9.03(a)(iii), (ii) simultaneously with or (iii), prior to such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, termination; 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
Sources: Business Combination Agreement (New Beginnings Acquisition Corp.)
Termination Fee. (a) If this Agreement shall be terminated:
(i) In by the event Company pursuant to Section 9.1(c)(iv), then, substantially concurrently with, and as a condition to such termination, the Company shall cause the third party that made the applicable Company Superior Proposal (or its designee) to pay the Acquiror, subject to applicable Law and Section 9.2(c), a non-refundable fee in an amount equal to $6,348,267.00, which is equal to 3.0% of the net asset value of the Company as of September 30, 2023 (the “Company Termination Fee”); or
(ii) (A) Parent by (x) the Acquiror or the Company terminates this Agreement pursuant to Sections 9.1(b)(ii) or 9.1(b)(iii) or (y) the Acquiror pursuant to Section 8.1(b)(i9.1(d)(i) (solely to the extent that the Company has committed a willful or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and 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 abandoned, then if, within nine (9) months date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Sections 9.1(b)(ii) or 9.1(d)(i), prior to the date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iii), prior to the time of the duly held Company Stockholders Meeting, and (C) the Company enters into a definitive agreement providing forContract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or recommends to its stockholdersfollowing such twelve (12)-month period), a Competing Proposal or a Competing then, within two (2) Business Days after the date that such Takeover Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent cause the third party that made such Takeover Proposal (or a Parent Subsidiary designated by Parentits designee) a fee of $69,750,000 in cash (to pay the “Acquiror, subject to applicable Law and Section 9.2(c), the Company Termination Fee”). Solely ; provided, that for purposes of this Section 8.2(b)(i9.2(a)(ii), the term “Competing Takeover Proposal” shall will have the meaning assigned to such term in Section 5.3(j)(i)Article X, except that all references to “1525%” therein shall will be deemed to be references to “50%.” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the The Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount Fee shall be paid by wire transfer of immediately available funds to the Acquiror or, at the election of the Acquiror, to one of its Consolidated Subsidiaries, to an account designated in writing to the Company by Parent the Acquiror if the Acquiror shall have furnished to the Company wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check.
(b) If this Agreement shall be terminated:
(i) by the Acquiror pursuant to Section 9.1(d)(iv), then, substantially concurrently with, and as a condition to such termination, the Acquiror shall cause the third party that made the applicable Acquiror Superior Proposal (or its designee) to pay the Company, subject to applicable Law and Section 9.2(c), a non-refundable fee in an amount equal to $29,905,339.00, which is equal to 3.0% of the net asset value of the Acquiror as of September 30, 2023 (the “Acquiror Termination Fee”); or
(ii) (A) by (x) the Acquiror or the Company pursuant to Sections 9.1(b)(ii) or 9.1(b)(iv) or (y) the Company pursuant to Section 9.1(c)(i) (solely to the extent that the Acquiror has committed a willful or intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Sections 9.1(b)(ii) or 9.1(c)(i), prior to the date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iv), prior to the time of the duly held Acquiror Stockholders Meeting, and (C) the Acquiror enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period), then, within two (2) Business Days after the date that such Takeover Proposal is consummated, the Acquiror shall cause the third party that made such Takeover Proposal (or its designee) to pay the Company, subject to applicable Law and Section 9.2(c), the Acquiror Termination Fee; provided, that for purposes of this Section 9.2(b)(ii), the term “Takeover Proposal” will have the meaning assigned to such term in Article X, except that references to “25%” will be deemed to be references to “50%.” The Acquiror Termination Fee shall be paid by wire transfer of immediately available funds to the Company or, at the election of the Company, to one of its Consolidated Subsidiaries, to an account designated in writing to the Acquiror by the Company if any amount becomes the Company shall have furnished to the Acquiror wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check.
(c) Notwithstanding anything to the contrary in this Agreement, the Company Termination Fee or the Acquiror Termination Fee, as applicable, shall not be due and payable pursuant to any this Section 9.2 if the SEC informs the Company or the Acquiror that the payment of such clauseCompany Termination Fee or Acquiror Termination Fee is prohibited under applicable Law, and the Company (in the case of an Acquiror Termination Fee) or the Acquiror (in the case of a Company Termination Fee) is unable to obtain appropriate relief from the SEC to permit the payment of such amount shall not be Company Termination Fee or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)Acquiror Termination Fee.
(vd) For Each of the avoidance parties hereto acknowledges that the agreements contained in this Section 9.2 are an integral part of doubtthe transactions contemplated hereby, in no event shall and without these agreements, the Company be obligated to pay the Termination Fee on more than one occasionparties would not enter into this Agreement.
Appears in 1 contract
Sources: Merger Agreement (MidCap Financial Investment Corp)
Termination Fee. (ia) In the event that:
(i) this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(i) (Outside Date) or Section 7.01(b)(iii) (Failure to Obtain Company Stockholder Approval) or by Parent pursuant to Section 7.01(c)(i) (Company Breach); provided that (A) Parent a bona fide Takeover Proposal shall have been publicly made, proposed or communicated by a third party (or such Takeover Proposal has otherwise been made known to the Board of Directors of the Company terminates this Agreement and shall have become publicly known) (1) in the case of a termination pursuant to Section 8.1(b)(i7.01(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 7.01(b)(iii), after the date of this Agreement and or (2) in the case of a termination pursuant to Section 7.01(c)(i), prior to such terminationthe date of the applicable breach and, in the case of a Competing Proposal shall have been termination pursuant to Section 7.01(b)(iii), not publicly disclosed or otherwise publicly communicated withdrawn prior to the Company Board or the Company’s stockholders time this Agreement is terminated and not publicly and unconditionally withdrawn or abandoned, then if, (B) within nine twelve (912) months of such terminationthe date this Agreement is terminated, the Company consummates a Takeover Proposal (or enters into a definitive written agreement providing for, with respect to any transaction included within the definition of Takeover Proposal and such transaction is subsequently consummated at any time) with the Person or recommends Persons that made the Takeover Proposal referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”A). Solely ; provided that, for purposes of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1525%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If the Company terminates this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(i7.01(c)(ii) (Adverse Recommendation Change) or (B) by the Company pursuant to Section 7.01(d)(ii) (Company Superior Proposal); then, concurrently with in any such terminationevent under clause (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 (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) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid its designee by wire transfer of immediately available same-day funds to an account designated in writing by Parent (andx) in the case of Section 7.03(a)(ii)(A), if any amount becomes payable pursuant within two (2) Business Days after such termination, (y) in the case of Section 7.03(a)(ii)(B), simultaneously with such termination or (z) in the case of Section 7.03(a)(i), within two (2) Business Days after the consummation of the Takeover Proposal referred to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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 (Talkspace, Inc.)
Termination Fee. (ia) In the event that that:
(i) this Agreement is terminated (A) Parent by the Acquiror pursuant to Section 9.01(f) or (B) by the Acquiror or the Company terminates this Agreement pursuant to Section 8.1(b)(i9.01(e) or Section 8.1(b)(iii) or Parent terminates this Agreement (but, in the case of termination pursuant to Section 8.1(c)(iii9.01(e), only if the Merger Agreement was terminated by the Merger Buyer pursuant to Section 8.01(f) and of the Merger Agreement);
(ii) this Agreement is terminated (A) by the Company pursuant to Section 9.01(g) or (B) by the Acquiror or the Company pursuant to Section 9.01(e) (but, in the case of termination pursuant to Section 9.01(e), only if the Merger Agreement was terminated by the Company pursuant to Section 8.01(g) of the Merger Agreement);
(iii) (A) after the date of this Agreement hereof and prior to such terminationthe termination of this Agreement, a Competing Proposal shall have been publicly disclosed made public or otherwise publicly communicated to the Company Board (or any Person shall have publicly announced, communicated or made known to the Company an intention, whether or not conditional, to make a Competing Proposal), (B) this Agreement is terminated (1) by either Acquiror or the Company’s stockholders Company pursuant to Section 9.01(b)(i) (unless the Stockholder Approval shall have been obtained prior to any such termination pursuant to Section 9.01(b)(i)), Section 9.01(b)(iii) or Section 9.01(e) (but, in the case of termination pursuant to Section 9.01(e), only if the Merger Agreement was terminated (x) by the Company or the Merger Buyer pursuant to Section 8.01(b)(i) of the Merger Agreement or Section 8.01(b)(iii) of the Merger Agreement (unless the Stockholder Approval shall have been obtained prior to any such termination pursuant to Section 8.01(b)(i) of the Merger Agreement) or (y) by the Merger Buyer pursuant to Section 8.01(c) of the Merger Agreement) or (2) by Acquiror pursuant to Section 9.01(c) and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine (9) twelve months after the date of such termination, the Company enters shall have entered into a definitive agreement providing forto consummate, shall have consummated, or recommends the Company Board shall have recommended to its the Company’s stockholders, a any transaction of the type referred to in the definition of Competing Proposal (whether or a not involving the Competing Proposal is consummatedreferred to in clause (A) above), then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (Acquiror the “Termination Fee”). Solely for purposes of this If the Termination Fee becomes payable pursuant Section 8.2(b)(i9.02(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, then the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) Acquiror the Termination Fee.
Fee as promptly as practicable (iiiand, in any event, within two Business Days) following such termination. If Parent terminates this Agreement the Termination Fee becomes payable 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)(iii9.02(a)(ii), 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, then the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) Acquiror the Termination Fee.
(iv) In Fee concurrently with such termination. If the event any amount is payable 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, if any amount Termination Fee becomes payable pursuant to any such clauseSection 9.02(a)(iii), such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall then the Company be obligated shall pay to pay Acquiror the Termination Fee on more than one occasionthe date of consummation of the applicable Competing Proposal. The “Termination Fee” shall mean a cash amount equal to $16,750,000.
Appears in 1 contract
Sources: Asset Purchase Agreement (Polypore International, Inc.)
Termination Fee. (a) The Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee if any of the following occur:
(i) In this Agreement is terminated by the event that Company pursuant to Section 7.1(c);
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(d); or
(iii) (A) either Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i7.1(b) or Section 8.1(b)(iii) 7.1(e), or Parent terminates this Agreement pursuant to Section 8.1(c)(iii7.1(g) and due to a breach of, or a failure to perform or comply with, one or more covenants or agreements set forth in Section 5.3, Section 5.4 or Section 5.5, (B) a bona fide Acquisition Proposal (provided for purposes of this clause (iii), all references to “15%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”) has been publicly disclosed or, in the case of termination pursuant to Section 7.1(b) or Section 7.1(g), made known to the Company Board after the date of this Agreement and and, if publicly disclosed, has not been publicly withdrawn (x) in the case of termination pursuant to Section 7.1(b) or Section 7.1(g), prior to such terminationthe Outside Date or (y) in the case of termination pursuant to Section 7.1(e), a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated at least two (2) Business Days prior to the date of the Company Board or the Company’s stockholders Meeting, and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of after such termination, the Company enters and/or its Subsidiaries shall have entered into a definitive agreement providing forwith respect to, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then an Acquisition Proposal.
(b) Any Company Termination Fee due under this Section 7.2 shall be paid to Parent (or its designee) by wire transfer of same-day funds (i) in the case of Section 7.2(a)(i), substantially concurrently with such termination, (ii) in the case of Section 7.2(a)(ii), within one two (12) business day Business Days after such termination and (iii) in the case of Section 7.2(a)(iii), within three (3) Business Days after the occurrence entry into the definitive agreement with respect to, or consummation of, the Acquisition Proposal described in Section 7.2(a)(iii) (it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion).
(c) Each party acknowledges that the agreements contained in this Section 7.2 are an integral part of the applicable event described Transactions and that, without these agreements, the parties would not enter into this Agreement. Each party further acknowledges that the Company Termination Fee if, as and when required to be paid, is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub in the circumstances in which the Company Termination Fee is payable, and which do not involve actual and intentional fraud or Willful and Material Breach, for the efforts and resources expended and opportunities foregone while negotiating this clause Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions. In addition, if the Company fails to pay in a timely manner any amount due pursuant to Section 7.2(a), then (2i) the Company shall reimburse Parent for all reasonable and documented out-of-pocket costs and expenses (including disbursements and fees of counsel) incurred in the collection of such overdue amounts, including in connection with any related claims, actions or proceedings commenced and (ii) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (interest on the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement amounts payable pursuant to Section 8.1(d)(i7.2(a) from and including the date payment of such amounts were 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 or a lesser rate that is the maximum then-permitted by applicable Law. Notwithstanding anything to the contrary in this Agreement, except the right to seek monetary damages for actual and intentional fraud or for Willful and Material Breach occurring prior to the valid termination of this Agreement, and without limiting Parent’s or Merger Sub’s right to specific performance in accordance with Section 9.11, (A) the Company Termination Fee (and any other amounts expressly contemplated by Section 7.2, if any) shall be the sole and exclusive remedy available to Parent, its Subsidiaries (including Merger Sub), concurrently with any financing sources of Parent or its Subsidiaries (including the Financing Parties), and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, affiliates, affiliated (or commonly advised) funds, representatives, agents or any their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, affiliate, representative, agent, assignee or successor of any of the foregoing against the Company, its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, affiliates, affiliated (or commonly advised) funds, representatives, agents or any their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, affiliate, representative, agent, assignee or successor of any of the foregoing (collectively, “Company Related Parties”) for any loss or damage suffered as a result of the failure of the Merger and the other Transactions to be consummated or for a breach of, or failure to perform under, this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or therewith, and upon payment of such terminationamounts, none of the Company Related Parties shall pay to Parent (have any further liability or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) obligation, whether in equity or Section 8.1(c)(ii) (at law, in contract, in tort 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)otherwise, in each case, following any time at which Parent was entitled to terminate in connection with this Agreement and the Transactions in circumstances in which the Company Termination Fee becomes due and payable and is paid in accordance with this Agreement, and (B) upon Parent’s receipt of the full Company Termination Fee (and any other amounts expressly contemplated by Section 7.2, if any) pursuant to this Section 8.1(c)(i) or Section 8.1(c)(ii)), within one (1) business day after such termination, 7.2 in circumstances in which the Company Termination Fee is payable, none of the Company Related Parties shall pay have any further liability or obligation relating to Parent (or a Parent Subsidiary designated by Parent) arising out of this Agreement or the Termination Fee.
(iv) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) Transactions. For the avoidance of doubt, (a) Parent may seek specific performance to cause the Company to consummate the Transactions in accordance with Section 9.11 and the payment of the Company Termination Fee pursuant to Section 7.2(a), but in no event shall Parent be entitled to both (i) specific performance to cause the Company to consummate the Transactions in accordance with Section 9.11 and (ii) the payment of the Company Termination Fee pursuant to Section 7.2(a), and (b) the Company may pursue both a grant of specific performance in accordance with Section 9.11 and the payment of other monetary damages, but in no event shall Parent or Merger Sub be obligated to both (i) specifically perform the terms of this Agreement and (ii) pay the Termination Fee on more than one occasionother monetary damages.
Appears in 1 contract
Termination Fee. Any provision in this Agreement to the contrary notwithstanding:
(ia) In the event that (A) Parent or If the Company terminates shall have validly terminated this Agreement pursuant to Section 8.1(b)(i6.04(b) , then the Company shall pay to Offeror a fee in the amount of $50,000,000 in cash (the “Company Termination Fee”), such payment to be made immediately prior to or Section 8.1(b)(iiiconcurrently with such termination.
(b) or Parent terminates this Agreement pursuant to Section 8.1(c)(iiiIf (i) and (BA) after the date of this Agreement Agreement, any Alternative Proposal is publicly proposed or publicly disclosed and not bona fide withdrawn prior to such terminationthe Expiration Time, 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 abandoned, then if, within nine (9B) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 validly terminated by Parent Offeror or the Company pursuant to Section 8.1(b)(i6.02(a), by Offeror pursuant to Section 6.05, or pursuant to Section 6.03 as a result of a termination of the SPA pursuant to Section 7.1(e) or Section 8.1(b)(iii7.1(h) thereunder, and (C) concurrently with 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)(iwithin twelve (12) or Section 8.1(c)(ii)), within one (1) business day months after such termination, the Company shall have entered into a definitive agreement in respect of, or shall have consummated, an Alternative Proposal (with references to “twenty percent (20%)” in the definition of Alternative Proposal deemed to be for this clause (C) references to “fifty percent (50%)”), then the Company shall pay to Parent (Offeror the Company Termination Fee in cash , such payment to be made upon the consummation of such Alternative Proposal; or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (i), (ii) (A) this Agreement is terminated (x) pursuant to Section 6.03 as a result of a termination of the SPA pursuant to Section 7.1(b) or Section 7.1(h) thereof, due to the fact that the Refinancing (as defined in the SPA) is not available to Seller for reasons other than a breach by Offeror, Sponsor or Buyer of the Transaction Documents or any failure of the Debt Financing (as defined in the SPA) or alternative financing in accordance with Section 5.8 of the SPA to be funded or to be available to be funded or (iiiy) by Offeror pursuant to Section 6.05(a) and (B) concurrently with or within twelve (12) months after such termination, the Company shall have entered into a definitive agreement in respect of, or shall have consummated, an Alternative Proposal (with references to “twenty percent (20%)” in the definition of Alternative Proposal deemed to be for this clause (C) references to “fifty percent (50%)”);, then in each of cases (i) and (ii) the Company shall pay to Offeror the Company Termination Fee in cash, such amount shall payment to be paid made upon the consummation of such Alternative Proposal. It is expressly acknowledged and agreed by wire transfer of immediately available funds to an account designated in writing by Parent the parties that (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(vA) For the avoidance of doubt, in no event shall the Company be obligated required to pay the a Company Termination Fee on more than one occasion; and (B) if the Company pays any Expense Reimbursement, the amount of such Expense Reimbursement shall be credited against any Company Termination Fee payable in accordance with this Agreement and any damages recoverable arising out of this Agreement; and (C) if any damages award is paid by the Company arising out of this Agreement prior to the payment by the Company of a Company Termination Fee or Expense Reimbursement, such damages shall be credited against any Company Termination Fee or Expense Reimbursement payable in accordance with this Agreement. Following receipt by Offeror of the Company Termination Fee in accordance with Section 6.07(a) or this Section 6.07(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated hereby to Offeror, including pursuant to Section 6.06 in respect of a Willful Breach.
(c) If this Agreement is terminated pursuant to Section 6.03 as a result of a termination of the SPA pursuant to Section 7.1(b) or Section 7.1(h) thereof, due to the fact that the Refinancing (as defined in the SPA) is not available to Seller for reasons other than a breach by Offeror, Sponsor or Buyer of the Transaction Documents or any failure of the Debt Financing (as defined in the SPA) or alternative financing in accordance with Section 5.8 of the SPA to be funded or to be available to be funded, then the Company shall reimburse Offeror for up to $25,000,000 of the out-of-pocket expenses incurred to date by Offeror and its Affiliates in connection with the Transactions) (the “Expense Reimbursement”), such payment to be made no later than three (3) Business Days after termination of this Agreement; it being understood and agreed by the parties that payment of the Expense Reimbursement shall not impair Offeror’s rights under subsection (b) above or to seek damages in the event of a Willful Breach pursuant to Section 6.06 (subject to the netting provisions set forth above).
(d) The parties acknowledge that the agreements contained in this Section 6.07 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, the parties would not have entered into this Agreement; accordingly, if either party fails to timely pay an amount due pursuant to this Section 6.07, the defaulting party shall pay the non-defaulting party 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.
(e) Notwithstanding anything to the contrary in this Agreement, in the event Offeror fails to effect the Offer Closing or otherwise breaches this Agreement, then, except for (x) an order of specific performance as and only to the extent expressly permitted by Section 7.11, the Equity Commitment Letter, and/or the Limited Guarantee or (y) any remedy available at law or equity with respect to a covenant to be performed following the Offer Closing or the Issuance, the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against any former, current and future equity holders, controlling Persons, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees of the Sponsors, Offeror or Equity Investors or any former, current or future stockholder, controlling Person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent or assignee of any of the foregoing (each, a “Offeror Related Party,” and collectively, “Offeror Related Parties”) in respect of this Agreement, any contract or agreement executed in connection herewith (including the Equity Commitment Letter and the Limited Guarantee) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VI and the SPA in accordance with its terms and collect thereunder or as otherwise provided in the Sponsor Guarantee (as defined in the SPA), if due, (i) the applicable Buyer Termination Fee under the SPA and (ii) any interest payable pursuant thereto, and upon payment of all such amounts, no Offeror Related Party shall have any further liability or obligation relating to or arising out of this Agreement, any contract or agreement executed in connection herewith (including the Equity Commitment Letter and the Limited Guarantee) or any of the transactions contemplated hereby or thereby.
(f) Notwithstanding anything to the contrary in this Agreement, in the event the Company breaches this Agreement, then, except for (x) an order of specific performance as and only to the extent expressly permitted by Section 7.11 or, in lieu of such order of specific performance, (y) any remedy for damages in the case of a Willful Breach in circumstances in which the Company Termination Fee would not be payable, or (z) any remedy available at law or equity with respect to a covenant to be performed following the Offer Closing, the Offeror’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against any former, current and future equity holders, controlling Persons, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees of the Company or any former, current or future stockholder, controlling Person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent or assignee of any of the foregoing (each, a “Company Related Party, “ and collectively, “Company Related Parties”) in respect of this Agreement, any contract or agreement executed in connection herewith and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VI and collect hereunder, if due, (i) the Company Termination Fee and (ii) any interest payable pursuant to Section 6.07(c), and upon payment of all such amounts, no Company Related Party shall have any further liability or obligation relating to or arising out of this Agreement, any contract or agreement executed in connection herewith or any of the transactions contemplated hereby or thereby.
Appears in 1 contract
Termination Fee. (ia) In the event that: (i) this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(iii); provided that (A) Parent a Takeover Proposal shall have been made, proposed or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) communicated by a third party 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 abandoned, then if, (B) within nine twelve (912) months of such terminationafter the date this Agreement is terminated, the Company or any of its Subsidiaries consummates a Takeover Proposal or enters into a definitive agreement providing for, with respect to a Takeover Proposal (whether or recommends not with the Person or Persons that made the Takeover Proposal referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”A). Solely ); provided, however, that, for purposes of clauses (A) and (B) of this Section 8.2(b)(i7.03(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15twenty percent (20%)” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “fifty percent (50%)”.
; or (ii) If the Company terminates this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(i7.01(c)(ii) or (B) by the Company pursuant to Section 7.01(d)(ii); then, concurrently with in any such terminationevent under clause (i) or (ii) of this Section 7.03(a)(i), the Company shall pay or cause to be paid the Company Termination Fee to Parent (or a its designee by wire transfer of same-day funds so long as 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 has provided the Company pursuant to with wire instructions for such payment (x) in the case of 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)7.03(a)(ii)(A), within one two (12) business day Business Days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii)(B), (ii) simultaneously with such termination or (iiiz) in the case of Section 7.03(a)(i), such amount shall be paid by wire transfer within two (2) Business Days after the consummation of immediately available funds the Takeover Proposal referred to an account designated in writing by Parent clause (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(vB) For the avoidance of doubt, thereof; it being understood that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion.or cause
Appears in 1 contract
Sources: Merger Agreement (OppFi Inc.)
Termination Fee. (ia) In the event that that:
(i) (A) Parent a Competing Proposal relating to a Competing Transaction shall have been made or proposed (and not withdrawn), after the date hereof and prior to the Shareholders Meeting (or prior to the termination of this Agreement if there has been no Shareholders Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i8.02(a) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) 8.02(c), and (BC) within twelve (12) months after the date termination of this Agreement and prior to such terminationAgreement, a Competing Proposal shall have been publicly disclosed any Group Company consummates, or otherwise publicly communicated to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholdersin connection with, a Competing Proposal Transaction, whether or a not such Competing Proposal is consummated, then within one (1) business day after Transaction was the occurrence of the applicable event described same Competing Transaction referred to in this clause (2A) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided, that for purposes of this Section 8.2(b)(iSection 8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.);
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iiiSection 8.03(c), 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, then the Company shall pay pay, or cause to be paid, to Parent or its designees an amount in cash equal to $5,164,923 (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid 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 available funds to an account designated after the termination of this Agreement in writing by Parent (and, if any amount becomes payable case of a termination pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingclause (iii) above).
(v) For the avoidance of doubt, ; it being agreed that in no event shall the Company be obligated required to pay the Company Termination Fee on more than once.
(b) Parent will pay, or cause to be paid, to the Company or one occasionor 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 (iii) 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 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, 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 enforceable by, each member of the Parent Group.
(ii) 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). This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the Company Group.
(iii) Notwithstanding anything to the contrary in this Agreement, 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 Parent Group collectively (A) under this Agreement or any other Transaction Document, (B) in connection with the failure of the 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, shall not exceed under any circumstances an amount equal to the 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 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 Agreement or any other Transaction Document, (B) in connection with the failure of the 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, shall not exceed under any circumstances an amount equal to the sum of (i) the Company Termination Fee, if any, due and owing to the Parent 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) The Company shall pay to Parent a nonrefundable fee of $68,250,000 in the event that:
(i) In the event that (AA)(1) Parent a bona fide Acquisition Proposal shall have been publicly made or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) proposed after the date of this Agreement and not withdrawn at least three (3) business days prior to such termination, the Company Stockholders Meeting in the case of a Competing termination pursuant to Section 7.01(b)(iii) or (2) a bona fide Acquisition Proposal shall have been publicly disclosed made or proposed or otherwise publicly communicated made to the Company Board or the Company’s stockholders Company Board after the date of this Agreement and not publicly 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 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 or Parent pursuant to Section 7.01(b)(i) (at a time when the 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 unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such terminationthe date this Agreement is terminated, the Company consummates any Acquisition Proposal or enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing any Acquisition Proposal or a Competing Proposal that is thereafter consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely ; provided that for purposes of clause (C) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of Acquisition Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.;
(ii) If this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(d)(i7.01(d)(ii), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.; or
(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 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), in 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 8.1(b)(i7.03(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 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)7.03(a)(iii), within one two (12) business day days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii), (ii) prior to or simultaneously with such termination or (iiiz) in the case of Section 7.03(a)(i), two (2) business days after the consummation of such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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) In the event that (A) Parent or an Acquisition Proposal shall have been made to the Company terminates this Agreement pursuant or shall have been made directly to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after its stockholders generally following the date of this Agreement, and thereafter (B) this Agreement and prior to such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to is terminated by the Company Board or Parent pursuant to Section 7.1(b)(i) solely as a result of the Company’s stockholders failure to satisfy the Minimum Condition and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9C) months of such termination, the Company enters into a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates a transaction contemplated by, a Competing any Acquisition Proposal or a Competing Proposal is consummated, then (replacing “10%” in the definition thereof with “66 2/3%”) within one (1) business day after the occurrence 12 months of the applicable event described in date this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.Agreement is terminated;
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 7.1(c)(ii) (or by the Company pursuant to Section 8.1(b)(i7.1(b) 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)(ii7.1(c)(ii)), within one ; or
(1iii) business day after such termination, this Agreement is terminated by the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses Section 7.1(d)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.3(a), such amount the Company shall pay to Parent a termination fee of $130,000,000 (the “Termination Fee”). Any payment of the Termination Fee required to be made pursuant to clause (i) of this Section 7.3(a) shall be paid made to Parent concurrently with the earlier to occur of (x) entry into a definitive agreement with respect to and (y) consummation of the transaction contemplated by wire transfer the Acquisition Proposal referred to therein; any payment of immediately available funds the Termination Fee required to an account designated in writing 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 (andor the Company, if as applicable) as set forth in such clause (ii) (and in any amount becomes payable pursuant event not later than one Business Day after delivery to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company be obligated to pay of notice of demand for payment); and any payment of the Termination Fee on more than one occasionrequired 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) In the event that If (A) (x) Parent or terminates this Agreement pursuant to Section 8.1(d), (y) the Company terminates this Agreement pursuant to Section 8.1(b)(i8.1(d) and at such time Parent would be permitted to terminate this Agreement pursuant to Section 8.1(d), or Section 8.1(b)(iii(z) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii8.1(c) and 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 of this Agreement hereof and prior to the date of such terminationtermination (except in the case of termination pursuant to Section 8.1(g), in which case prior to the Company Stockholder Approval being obtained) a Competing bona fide Acquisition Proposal shall have been is publicly disclosed (whether by the Company or a third party), or otherwise publicly communicated made known to the Company Board of Directors or Company management, and in each case, is not withdrawn (publicly, if publicly disclosed) at least three (3) Business Days prior to the Company’s stockholders earlier of the date of the Company Stockholders Meeting and not publicly the date of such termination and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such termination, the Company enters into an Acquisition Proposal is consummated or a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing in respect of an Acquisition Proposal is consummatedentered into, then within one on or prior to the date that is the earlier of (1) business day after the occurrence of the applicable event described in this clause date any such Acquisition Proposal is consummated and (2) the date of entry in any such definitive agreement, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 450,000,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i8.2(b) (i), the term “Competing Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)Annex A, except that all references to “fifteen percent (15%)” and “eighty five percent (85%)” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “fifty percent (50%).”
(ii) If (A) Parent terminates this Agreement pursuant to Section 8.1(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 two (2) Business Days after such termination, the Company shall pay to Parent the Termination Fee.
(iiiii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i8.1(g), concurrently with or prior to (and as a condition to) such termination, the Company shall pay 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) 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, if which account shall be designated by Parent upon written request by the Company to allow the Company to pay or cause to be paid to Parent any amount becomes amounts payable pursuant hereunder within the time periods required by this Section 8.2). Notwithstanding anything to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account the contrary in writing).
(v) For the avoidance of doubtthis Agreement, 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) In the event that that:
(i) (A) Parent or this Agreement is terminated by the Company terminates this Agreement or VectoIQ pursuant to Section 8.1(b)(i9.01(b) or by VectoIQ pursuant to Section 9.01(f) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and 9.01(g); (B) a bona fide Company Acquisition Proposal shall have been made, proposed or otherwise communicated to the Company after the date of this Agreement and prior to but before the date of 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 abandoned, then if, (C) within nine six (96) months of such terminationthe date this Agreement is terminated, the Company enters into a definitive agreement providing forwith respect to such Company Acquisition Proposal; provided, or recommends to its stockholdersthat, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of clauses (B) and (C) of this Section 8.2(b)(i9.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1510%” therein in the definition of Company Acquisition Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If the Company terminates this Agreement is terminated (A) by VectoIQ pursuant to Section 8.1(d)(i9.01(e) or (B) by the Company pursuant to Section 9.01(i); then, concurrently with in any such terminationevent under clause (i) or (ii) of this Section 9.03(a), the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
Fee to VectoIQ or its designee by wire transfer of same day funds (iiix) If Parent terminates this Agreement pursuant to in the case of 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)9.03(a)(ii)(A), within one two (12) business day Business Days after such termination, (y) in the case of Section 9.03(a)(ii)(B), simultaneously with such termination or (z) in the case of Section 9.03(a)(i), upon entry into the definitive agreement with respect to the Company shall pay Acquisition Proposal referred to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, therein; 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
Sources: Business Combination Agreement (VectoIQ Acquisition Corp.)
Termination Fee. (ia) In the event that that:
(i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such termination, a Competing Takeover Proposal shall have been publicly disclosed or otherwise publicly communicated to the Company Board after the date hereof, (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or the Company’s stockholders 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 not publicly and unconditionally withdrawn (C) prior to or abandoned, then if, within nine twelve (912) months of such terminationfollowing the date this Agreement is terminated, the Company enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing any Takeover Proposal or a Competing any Takeover Proposal is consummated, then within one consummated (1) business day after in each case whether or not the occurrence of Takeover Proposal was the applicable event described same Takeover Proposal referred to in this clause (2A)); provided, however, that for purposes of clause (C) of this Section 7.3(a)(i), the references to "twenty percent (20%)" in the definition of Takeover Proposal shall be deemed to be references to "fifty percent (50%)" ;
(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 (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash ('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. Solely for For purposes of this Agreement, "Termination Fee" shall mean an amount equal to $23,000,000. If the Termination Fee becomes payable pursuant to Section 8.2(b)(i7.3(a)(i), it shall be paid no later than three (3) Business Days after the term “Competing Proposal” shall have consummation of the meaning assigned Takeover Proposal transaction described in clause (C) of Section 7.3(a)(i). If the Termination Fee becomes payable pursuant to such term in Section 5.3(j)(i7.3(a)(ii), except that all references to “15%” therein it shall be deemed paid prior to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If or contemporaneously with the Company terminates termination of this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, 7.1(d)(ii) (and any purported termination pursuant to this Section shall be void and of no force or effect unless the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) have made such payment). If the Termination Fee.
Fee becomes payable pursuant to Section 7.3(a)(iii), it shall be paid no later than three (iii3) If Parent terminates Business Days after the termination of this Agreement pursuant to Section 8.1(c)(i7.1(c)(ii). If the Termination Fee becomes payable pursuant to Section 7.3(a)(iii) or Section 8.1(c)(ii) (or because this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(b)(i7.1(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 Section 8.1(b)(iiiits designee.
(b) or Parent pursuant to Section 8.1(c)(iii), in each case, following any time at which Parent was entitled to In the event that:
(i) the Company shall 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) In the event any amount is payable pursuant to the preceding clauses (i), (ii7.1(d)(i) or (iii), such then Parent shall pay to the Company a termination fee of $38,000,000 in cash (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. 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), as the case may be.
(c) Any amount that becomes payable pursuant to Section 7.3(a) or Section 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, (and, if any amount becomes payable i) 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 such clauseloss 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"), 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 be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingexceed the Liability Limitation (as defined below).
(vf) For Without limiting Parent's rights under Section 8.7, and except in the avoidance event of doubtwillful 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, the maximum aggregate liability of Parent and Merger Sub for all Company Damages and of the Company for all Parent Damages, respectively, shall be limited to $38,000,000 (inclusive of the Parent Termination Fee in the case of liability of Parent and Merger Sub and inclusive of the Termination Fee and 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 in no event shall (i) the Company or 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, 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 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 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 pay 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 Termination Fee 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 the Company to the extent provided in this Agreement), through the Company or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on more 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 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 one occasionParent 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 made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise.
Appears in 1 contract
Termination Fee. (i) In If this Agreement is terminated by Parent pursuant to Section 10.01(c)(i), Section 10.01(c)(ii) (but only if the event that failure to satisfy the condition specified therein results from an intentional breach by the Company of any of its representations and warranties or the intentional failure of the Company to perform a covenant or obligation contained herein) or Section 10.01(c)(iii), then the Company shall pay Parent in immediately available funds, the Termination Fee, which shall be payable within three Business Days of such termination.
(ii) If this Agreement is terminated by the Company pursuant to Section 10.01(d)(i), then the Company shall pay to Parent in immediately available funds the Termination Fee, which shall be payable at the time of such termination.
(iii) If (A) this Agreement is terminated by Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and 10.01(b)(iii), (B) after the date of this Agreement and prior to such termination, a Competing an Acquisition Proposal shall have been publicly disclosed announced or otherwise publicly been communicated to the stockholders of the Company Board or the Company’s stockholders and such Acquisition Proposal is not publicly withdrawn prior the Company Stockholder Meeting, and unconditionally withdrawn or abandoned, then if, (C) within nine (9) months following the date of such termination, the Company enters shall have entered into a definitive agreement providing for, with respect to or recommends recommended to its stockholders, a Competing stockholders an Acquisition Proposal or a Competing an Acquisition Proposal is consummatedshall have been consummated (provided, then within one (1) business day after the occurrence however, that for purposes of the applicable event described in this clause (2) C), each reference to “15%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”), then the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i)immediately available funds, concurrently with such terminationthe consummation of the applicable Acquisition Proposal, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the The Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash 205,000,000 (the “Termination Fee”). Solely for purposes , by wire transfer of this Section 8.2(b)(i)immediately available funds to an account or accounts designated in writing by Parent, in the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.event that:
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(iii) (or A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i9.1(b)(i)(A) or Section 8.1(b)(iii9.1(b)(i)(B) or Parent pursuant (provided, that (x) at the time of such termination, the conditions to Section 8.1(c)(iiithe Offer set forth in clauses (A), in each case(C)(1) (solely with respect to any U.S. Antitrust Law) and (C)(2) of Annex A are satisfied and the Minimum Condition is not satisfied, following any time at which Parent was entitled and (y) with respect to such termination by the Company, the right to terminate this Agreement pursuant to Section 8.1(c)(i9.1(b)(i) is then available to Parent); (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, an Acquisition Proposal shall have been publicly announced or shall have become publicly disclosed or publicly known; and (C) within twelve (12) months following such termination of this Agreement, (x) the Company or a Subsidiary of the Company enters into a definitive agreement with any third party with respect to an Acquisition Transaction or (y) an Acquisition Transaction is consummated; in which case the Termination Fee shall be payable within two (2) Business Days after the earlier of the events in clause (C)(x) or (y);
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii)9.1(c)(ii), in which case the Termination Fee shall be payable concurrently with and as a condition to the effectiveness of such termination; or
(iii) this Agreement is terminated by Parent pursuant to Section 9.1(d)(ii), in which case the Termination Fee shall be payable within one two (12) business day Business Days after such termination, . For purposes of the Company shall pay references to Parent (an “Acquisition Proposal” or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (ian “Acquisition Transaction” in Section 9.3(b)(i), all references to “twenty percent (ii) 20%)” or “eighty percent (iii80%), such amount ” in the definition of “Acquisition Transaction” shall be paid by wire transfer of immediately available funds deemed to an account designated in writing by Parent be references to “fifty percent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing50%).
(v) 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) If this Agreement shall be terminated:
(i) In by the event Company pursuant to Section 9.1(c)(iv), then, substantially concurrently with, and as a condition to such termination, the Company shall cause the third party that made the applicable Company Superior Proposal (or its designee) to pay the Acquiror, subject to applicable Law and Section 9.2(c), a non-refundable fee in an amount equal to $7,029,482.00, which is equal to 3.0% of the net asset value of the Company as of September 30, 2023 (the “Company Termination Fee”); or
(ii) (A) Parent by (x) the Acquiror or the Company terminates this Agreement pursuant to Sections 9.1(b)(ii) or 9.1(b)(iii) or (y) the Acquiror pursuant to Section 8.1(b)(i9.1(d)(i) (solely to the extent that the Company has committed a willful or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and 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 abandoned, then if, within nine (9) months date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Sections 9.1(b)(ii) or 9.1(d)(i), prior to the date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iii), prior to the time of the duly held Company Stockholders Meeting, and (C) the Company enters into a definitive agreement providing forContract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or recommends to its stockholdersfollowing such twelve (12)-month period), a Competing Proposal or a Competing then, within two (2) Business Days after the date that such Takeover Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent cause the third party that made such Takeover Proposal (or a Parent Subsidiary designated by Parentits designee) a fee of $69,750,000 in cash (to pay the “Acquiror, subject to applicable Law and Section 9.2(c), the Company Termination Fee”). Solely ; provided, that for purposes of this Section 8.2(b)(i9.2(a)(ii), the term “Competing Takeover Proposal” shall will have the meaning assigned to such term in Section 5.3(j)(i)Article X, except that all references to “1525%” therein shall will be deemed to be references to “50%.” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the The Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount Fee shall be paid by wire transfer of immediately available funds to the Acquiror or, at the election of the Acquiror, to one of its Consolidated Subsidiaries, to an account designated in writing to the Company by Parent the Acquiror if the Acquiror shall have furnished to the Company wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check.
(b) If this Agreement shall be terminated:
(i) by the Acquiror pursuant to Section 9.1(d)(iv), then, substantially concurrently with, and as a condition to such termination, the Acquiror shall cause the third party that made the applicable Acquiror Superior Proposal (or its designee) to pay the Company, subject to applicable Law and Section 9.2(c), a non-refundable fee in an amount equal to $29,905,339.00, which is equal to 3.0% of the net asset value of the Acquiror as of September 30, 2023 (the “Acquiror Termination Fee”); or
(ii) (A) by (x) the Acquiror or the Company pursuant to Sections 9.1(b)(ii) or 9.1(b)(iv) or (y) the Company pursuant to Section 9.1(c)(i) (solely to the extent that the Acquiror has committed a willful or intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Sections 9.1(b)(ii) or 9.1(c)(i), prior to the date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iv), prior to the time of the duly held Acquiror Stockholders Meeting, and (C) the Acquiror enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period), then, within two (2) Business Days after the date that such Takeover Proposal is consummated, the Acquiror shall cause the third party that made such Takeover Proposal (or its designee) to pay the Company, subject to applicable Law and Section 9.2(c), the Acquiror Termination Fee; provided, that for purposes of this Section 9.2(b)(ii), the term “Takeover Proposal” will have the meaning assigned to such term in Article X, except that references to “25%” will be deemed to be references to “50%.” The Acquiror Termination Fee shall be paid by wire transfer of immediately available funds to the Company or, at the election of the Company, to one of its Consolidated Subsidiaries, to an account designated in writing to the Acquiror by the Company if any amount becomes the Company shall have furnished to the Acquiror wire payment instructions prior to the date of payment or, otherwise, by certified or official bank check.
(c) Notwithstanding anything to the contrary in this Agreement, the Company Termination Fee or the Acquiror Termination Fee, as applicable, shall not be due and payable pursuant to any this Section 9.2 if the SEC informs the Company or the Acquiror that the payment of such clauseCompany Termination Fee or Acquiror Termination Fee is prohibited under applicable Law, and the Company (in the case of an Acquiror Termination Fee) or the Acquiror (in the case of a Company Termination Fee) is unable to obtain appropriate relief from the SEC to permit the payment of such amount shall not be Company Termination Fee or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)Acquiror Termination Fee.
(vd) For Each of the avoidance parties hereto acknowledges that the agreements contained in this Section 9.2 are an integral part of doubtthe transactions contemplated hereby, in no event shall and without these agreements, the Company be obligated to pay the Termination Fee on more than one occasionparties would not enter into this Agreement.
Appears in 1 contract
Sources: Merger Agreement (MidCap Financial Investment Corp)
Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement is terminated pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such termination8.1(e), 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a termination fee of $69,750,000 in cash 50,000,000 (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If In the Company terminates event that this Agreement is terminated pursuant to Section 8.1(d)(i)8.1(f)(ii)(A) as a result of an intentional or willful breach by the Company, concurrently with such terminationand after the date hereof but prior to the vote on this Agreement at the Company Stockholders’ Meeting, 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, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates 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 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 8.1(c)(i) or Section 8.1(c)(ii) (or this Agreement 8.1(d), a Competing Transaction is terminated by Parent consummated or the Company pursuant enters into an agreement with respect to Section 8.1(b)(i) a Competing Transaction which is ultimately consummated (whether prior to 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 terminationtwelve-month period), the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In The Termination Fee shall be payable (A) in the event any amount is payable 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 the preceding clauses (iSection 8.1(e) or 8.1(f)(ii)(A), respectively, and (iiB) or (iiiin the case of Section 8.1(e)(iii), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent within two (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)2) Business Days after the date on which a Competing Transaction is consummated.
(v) For the avoidance of doubt, in In no event shall the fee payable by the Company pursuant to this Section 8.2(e) exceed the amount of the Termination Fee, and any amounts paid pursuant to Section 8.2(b) shall be credited against the Termination Fee.
(vi) If at any time a fee becomes payable by the Company pursuant to this Section 8.2(e), Parent shall have the right (but not the obligation), at its option, to terminate its obligations under the Stock Purchase Agreement. Notwithstanding the foregoing, the Company shall not be obligated to pay to Parent the 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 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 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 from the date such payment was required to be made until the date of payment at the prime rate of Citibank, N.A. in effect on more than one occasionthe date such payment was required to be made.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Termination Fee. (ia) In the event that that:
(i) this Agreement is terminated (A) Parent or by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i7.01(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and 7.01(b)(iii), (B) a bona fide Takeover Proposal shall have been publicly made, proposed or otherwise communicated or delivered to the Company or shall have otherwise become publicly known after the date of this Agreement and such Takeover Proposal shall not have been withdrawn in good faith prior to such terminationtermination (x) in the case of a termination pursuant to Section 7.01(b)(i), a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated prior to the Company Board date of such termination or (y) in the Company’s stockholders case of a termination pursuant to Section 7.01(b)(iii), prior to the date of the Stockholders Meeting, and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such terminationthe date this Agreement is so terminated, the Company (1) enters into a definitive agreement providing for, Company Acquisition Agreement with any Person or recommends Persons with respect to its stockholders, a Competing any Takeover Proposal or a Competing and such Takeover Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause subsequently consummated or (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely consummates any Takeover Proposal; provided that, for purposes of clauses (B) and (C) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If the Company terminates this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(i7.01(c)(ii) or (B) by the Company pursuant to Section 7.01(d)(ii); then, concurrently with in any such terminationevent under clause (i) or (ii) of this Section 7.03, the Company shall pay (or cause to be paid) the Company Termination Fee to Parent or its designee by wire transfer of same day funds (or a Parent Subsidiary designated by Parentx) in the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to case of 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)7.03(a)(ii)(A), within one (1) business day two Business Days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii)(B), prior to or concurrently (iiand as a condition to such termination) with such termination or (iiiz) in the case of Section 7.03(a)(i), such amount shall be paid by wire transfer within two Business Days after the consummation of immediately available funds the Takeover Proposal referred to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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. (ia) In the event that that:
(i) (A) Parent a bona fide Acquisition Proposal 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 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) if there has been no Shareholders’ Meeting), and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after following the occurrence of the applicable an event described in this the preceding clause (2A), this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii) and (C) within 12 months of the termination of this Agreement, any Acquisition Proposal by a third party is entered into, agreed to or consummated by the Company (in each case whether or not the Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)); or
(ii) (A) this Agreement is terminated by Parent pursuant to Section 9.1(c) or (B) this Agreement is terminated by the Company pursuant to Section 9.1(d)(ii); then the Company shall pay if and as directed by Parent or its designee a cash amount equal to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash US$475,000 (the “Termination Fee”) to Parent or its designee by wire transfer of same day funds. The Company shall pay the Termination Fee within three business days after such termination, in the case of a termination referred to in clause (ii), or on the earlier of the date on agreement is entered into with respect to an Acquisition Proposal or an Acquisition Proposal is consummated in the case of clause (ii); it being understood that in no event shall the Company be required to pay the applicable Termination Fee on more than one occasion. Solely for purposes of In the event that Parent or its designee shall receive full payment pursuant to this Section 8.2(b)(i9.3(a) and Section 9.3(c), together with reimbursement of any applicable expenses pursuant to Section 9.3(e), the term “Competing Proposal” shall have receipt of the meaning assigned applicable Termination Fee, Parent Expenses and the expenses referred to such term in Section 5.3(j)(i), except that all references to “15%” therein 9.3(e) shall be deemed to be “50%” liquidated damages for any and all references 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 Debt Commitment Letter, any New Financing Documents and any definitive agreements with respect to the Debt Financing or any Alternate Financing, the transactions contemplated hereby and thereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates arising out of or in connection with this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination; provided, however, that nothing in this Section 9.3(a) shall limit the rights of Parent and Merger Sub under Section 10.13. For the avoidance of doubt, subject to Section 10.13, in the event Parent or its designee shall receive payment from the Company of the Termination Fee, Parent Expenses and the expenses referred to in Section 9.3(e), the receipt of such Termination Fee, Parent Expenses and expenses shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amount(s), none of the Company Related Parties shall have any further liability or obligation arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination. Each of Parent and Merger Sub acknowledges and agrees that it has no right of recovery against, and in no event shall any of the Parent Related Parties seek to recover any damages from or make any claim against, any Company Related Party (other than its rights against the Company under this Agreement).
(b) In the event that the Company shall terminate this Agreement pursuant to Section 9.1(d)(i) or Section 9.1(d)(iii), then Parent shall pay, or cause to be paid, to the Company a cash amount equal to US$950,000 (the “85%” therein Parent Termination Fee”) by wire transfer of same day funds, within three business days after such termination. In the event that the Company shall receive full payment pursuant to this Section 9.3(b) and Section 9.3(d), together with reimbursement of any applicable expenses pursuant to Section 9.3(e), the receipt of the Parent Termination Fee and such expenses shall be deemed to be “50%”liquidated damages for any and all losses or damages suffered or incurred by the Company or any other Person in connection with this Agreement, the Debt Commitment Letter, any New Financing Documents and any definitive agreements with respect to the Debt Financing or any Alternate Financing, 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 claim, action or proceeding against Parent, Merger Sub or any of their respective former, current or future Representatives or Affiliates arising out of or in connection with this Agreement, the Debt Commitment Letter, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination; provided, however, that nothing in this Section 9.3(b) shall limit the rights of the Company under Section 10.13. For the avoidance of doubt, the right of the Company and its designees to receive payment from Parent of the Parent Termination Fee, Company Expenses and the expenses referred to in Section 9.3(e) shall be the sole and exclusive remedy of the Company Related Parties against the Parent Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amount(s), none of the Parent Related Parties shall have any further liability or obligation arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination. The Company acknowledges and agrees that it has no right of recovery against, and in no event shall any of the Company Related Parties seek to recover any damages from or make any claim against, any Parent Related Party (other than its rights against Parent or Merger Sub under this Agreement or against the Guarantor under the Limited Guaranty).
(iic) If In the event that:
(i) The Company terminates shall terminate this Agreement pursuant to Section 8.1(d)(i9.1(d)(ii), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.; or
(iiiii) If Parent terminates shall terminate this Agreement pursuant to Section 8.1(c)(i9.1(c); then the Company shall pay Parent or its designees by wire transfer of same day funds, as promptly as possible (but in any event within three business days) following the delivery by Parent of an invoice therefor, all out-of-pocket fees and expenses incurred by Parent, Merger Sub and their respective Affiliates in connection with the transactions contemplated by this Agreement, including the Debt Financing (the “Parent Expenses”), up to a maximum amount equal to US$650,000.
(d) In the event that the Company shall terminate this Agreement pursuant to Section 9.1(d)(i) or Section 8.1(c)(ii9.1(d)(iii); then Parent shall pay the Company or its designees, as promptly as possible (but in any event within three business days) (or following the delivery by the Company of an invoice therefor, all out-of-pocket fees and expenses incurred by the Company and its Affiliates in connection with the transactions contemplated by this Agreement is terminated by (the “Company Expenses”), up to a maximum amount equal to US$1,300,000.
(e) Each of the parties hereto acknowledge that the agreements contained in this Section 9.3 are an integral part of the Merger, and that without these agreements the other parties would not enter into this Agreement; accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 9.3, and, in order to obtain the payment, Parent or the Company, as the case may be, commences an Action which results in a judgment against the other party, with respect to Parent or Merger Sub, or parties, with respect to the Company pursuant for the payment set forth in this Section 9.3, such paying party shall pay the other party or parties, as applicable, 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 Section 8.1(b)(ibe made through the date such payment is actually received.
(f) 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 The party desiring to terminate this Agreement pursuant to Section 8.1(c)(i9.1 (other than Section 9.1(a)) or Section 8.1(c)(ii)), within one (1shall give written notice of such termination to the other parties specifying the relevant provision(s) business day after pursuant to which such termination is purportedly effected and including reasonable detail of the circumstances giving rise to such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. To induce the Offeror to enter into this Merger Agreement and to pursue and make the Offer, in the event that:
a. this Merger Agreement is terminated pursuant to Clause 9.1e; or
b. this Merger Agreement is terminated pursuant to Clause 9.1f; or
c. if (i) In prior to the event Closing Date, a public announcement has been made indicating that a third party has made, is preparing or increases an Alternative Proposal (Aor an Alternative Proposal is made directly to the Company’s shareholders), (ii) Parent thereafter this Merger Agreement is terminated by either the Offeror or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) Clause 9.1c and (Biii) within 12 months 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing forto consummate, or recommends to its stockholdersconsummates, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) transactions contemplated by any Alternative Proposal; the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) in cash a fee to the Offeror of $69,750,000 EUR 20,232,000 as compensation for opportunity costs and other costs incurred by the Offeror in cash connection with the Offer. The fee of EUR 20,232,000 will not be subject to any gross-up for Taxes or to any Tax withholding. Payment shall be made by the Company (i) immediately upon termination of this Merger Agreement, in the “Termination Fee”case of subclause (a), (ii) within two Business Days after termination of this Merger Agreement, in the case of subclause (b) or (iii) on the date of the first to occur of the events described in subclause (c)(iii), in the case of subclause (c). Solely for For purposes of this Section 8.2(b)(i)subclause (c)(iii) above only, the term “Competing Proposal” Alternative Proposal shall have the meaning assigned to such term in Section 5.3(j)(i)Clause 8.1, except that all references to “1510%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “5040%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. (ia) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(iiiSection 7.1(h), in each casethen the Company, following any time at which Parent was entitled shall pay, or cause to terminate this Agreement pursuant be paid, to Section 8.1(c)(i) or Section 8.1(c)(ii))the SPAC, within one thirty (130) business day after days of such termination, the Company shall pay an amount equal to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)the SPAC.
(vb) For In the avoidance event that this Agreement is terminated for any reason other than by the Company pursuant to Section 7.1(c) or by SPAC or by the Company, as the case may be, pursuant to Section 7.1(f) or Section 7.1(g), the Company shall pay, or cause to be paid, to the SPAC, an amount equal to five percent (5%) of doubtany SPAC Introduced Financing Amount from any source during the period beginning October 16, 2024 and extending through the twelve (12) months immediately following the effective date of such termination (the “Post-Termination Fee”). The Company shall remit the Post-Termination Fee to SPAC within thirty (30) days of receiving any such funds during this period. This obligation shall survive the termination of this Agreement and shall be binding upon the Parties.
(c) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c), then the SPAC, shall pay, or cause to be paid, to the Company, within thirty (30) days of such termination, an amount equal to the Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by the Company.
(d) The Parties acknowledge and agree that the provisions for payment of the Termination Fee are an integral part of the Transactions and are included herein in order to induce the Parties to enter into this Agreement. The Parties acknowledge and agree that (i) in no event shall the Company party terminating this Agreement (the “Terminating Party”) be obligated required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable upon the occurrence of different events, and (ii) notwithstanding that SPAC or the Company, as applicable, may have the right to simultaneously seek specific performance of the Terminating Party’s obligation to consummate the Closing, on the one hand, and the Termination Fee, on the other hand, it may only obtain either specific performance of the Terminating Party’s obligation to consummate the Closing, on the one hand, or the Termination Fee, on the other hand. Notwithstanding anything to the contrary in this Agreement (subject to such Party’s right to seek specific performance pursuant to this Agreement, as and to the extent permitted thereunder), if SPAC or the Company, as applicable, is entitled to receive the Termination Fee pursuant to this Section 7.3, such Party’s right to receive payment of the Termination Fee shall be the sole and exclusive remedy of such Party and its Affiliates against the Terminating Party or any of the Terminating Party’s Non-Party Affiliates for any breach of this Agreement (including any failure to consummate the Closing in accordance herewith) or otherwise under this Agreement or arising out of or related to the Transactions, and upon payment of the Termination Fee, the Terminating Party and its Affiliates shall have no any liability or obligation of any kind or nature relating to or arising out of this Agreement or the transactions contemplated hereby, in each case, whether based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise. SPAC and the Company further agree that, in the event of termination of this Agreement, the maximum aggregate liability of the Terminating Party under this Agreement shall be limited to an amount equal to the Termination Fee and in no event shall seek to recover, or be entitled to recover, from the Terminating Party or its Affiliates any monetary damages of any kind, character or description in excess of such amount.
Appears in 1 contract
Sources: Business Combination Agreement (Israel Acquisitions Corp)
Termination Fee. (ia) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the The Company shall pay to Parent (or a Parent Subsidiary designated by the Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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 by the Parent, a fee of $84,549,193.00 (the “Termination Fee”) if this Agreement is terminated as follows:
(i) if the Parent terminates this Agreement pursuant to Section 10.1(a)(iii)(B), the Company shall pay the Parent the Termination Fee in writing by full on the Business Day following the date of such termination;
(ii) if the Parent (or the Company terminates this Agreement pursuant to Section 10.1(a)(ii)(A) or 10.1(a)(ii)(C), or the Parent terminates this Agreement pursuant to Section 10.1(a)(iii)(A) and, prior to such termination a Qualified Third Party Proposal shall have been made known to the Company or publicly announced and, within 12 months following such termination, the Company enters into a definitive agreement with respect to, or consummates, any Qualified Acquisition Transaction (whether or not such transaction was the one as to which a proposal, offer or indication of interest had been made or announced prior to such termination), then the Company shall pay the Parent the Termination Fee contemporaneously with the consummation of the Qualified Acquisition Transaction; or
(iii) if any amount becomes payable the Company terminates this Agreement pursuant to any such clauseSection 10.1(a)(iv)(B), the Company shall pay the Parent the Termination Fee in full at or prior to, and as a condition precedent to the effectiveness of, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)termination.
(vb) For purposes of Section 10.4(a), (i) “Qualified Third Party Proposal” means a Third Party Proposal relating to a Qualified Acquisition Transaction, and (ii) “Qualified Acquisition Transaction” has the avoidance of doubtsame meaning as Acquisition Transaction, in no event except that all references therein to “25% or more” shall the Company be obligated deemed to pay the Termination Fee on be references to “more than one occasion50%”.
Appears in 1 contract
Sources: Merger Agreement (International Securities Exchange Holdings, Inc.)
Termination Fee. (ia) In the event that that:
(i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such termination, a Competing Takeover Proposal shall have been publicly disclosed or otherwise publicly communicated made directly to the Company Board or the Company’s stockholders stockholders, any Person shall have publicly 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 not publicly thereafter, (B) this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(ii) or Section 8.1(b)(iii) and unconditionally withdrawn or abandoned, then if, within nine (9C) months of such termination, the Company enters into a definitive agreement providing forwith respect to, or recommends consummates, a transaction contemplated by any Takeover Proposal within twelve (12) months of the date this Agreement is terminated;
(ii) (A) a Takeover Proposal shall have been made to its the Company Board or the Company’s stockholders, any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to make such a Competing Takeover Proposal or such a Competing Takeover Proposal otherwise becomes publicly known, and thereafter, (B) this Agreement is consummatedterminated by the Parent pursuant to Section 8.1(d)(ii) or Section 8.1(d)(iii) and (C) the Company enters into a definitive agreement with respect to, then or consummates, a transaction contemplated by any Takeover Proposal within one twelve (112) business day after the occurrence months of the applicable 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 pursuant to Section 8.1(c)(ii); then in any such event described in under clauses (i), (ii), (iii) or (iv) of this clause (2) Section 8.3(a), the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a termination fee of $69,750,000 16,172,214 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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) In the event that (A) Parent or the Company terminates this Agreement is terminated by (1) Parent pursuant to Section 8.1(b)(i8.1(d) or Section 8.1(b)(iii(2) or Parent terminates this Agreement the Company pursuant to Section 8.1(c)(iii8.1(e) and or (BB)(1) after the date of this Agreement and prior to such terminationthe Acceptance Time, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated made directly to the stockholders of the Company Board 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’s stockholders Company pursuant to Section 8.1(c) and not publicly and unconditionally withdrawn (3) on or abandoned, then if, within nine prior to the twelve (912) months month anniversary of such termination, the Company enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing Proposal or a Competing Proposal is the transactions contemplated thereby are actually consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of Thirty Five Million One Hundred Fifty Thousand Dollars ($69,750,000 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). Solely for , 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.
(ii) For purposes of this Section 8.2(b)(i)8.2(b)(i)(B)(3) only, the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)9.5, except that all references the reference to “1520%” therein in the definition of “Competing Proposal” shall be deemed to be “50%” and all references a reference to “85%” therein shall be deemed to be “5040%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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) The Company will pay, or cause to be paid, to one or more designees of Parent (i) In an amount equal to US$5,000,000 (the event that (A“Tier I Company Termination Fee”) Parent or the Company terminates if this Agreement is terminated (1) by Parent pursuant to Section 8.1(b)(i8.04(a); or (2) by the Company or Parent pursuant to Section 8.02(a) or Section 8.1(b)(iii8.02(c), and within twelve (12) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) months after the date of this Agreement and prior to such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to termination the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine any of its Subsidiaries enters any definitive agreements in connection with any Competing Transaction (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 8.2(b)(i8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%one-third (1/3)”.
), and (ii) If an amount equal to US$6,666,667 (the “Tier II Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently Termination Fee”; collectively with such terminationthe Tier I Company Termination Fee, the “Company shall pay 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 if this Agreement is terminated by Parent pursuant to Section 8.04(b), or by the Company pursuant to Section 8.1(b)(i8.03(c) or Section 8.1(b)(iii8.03(d). The Company Termination Fee shall be paid, in the case of termination pursuant to clauses (i)(1) and (ii) above, at or prior to the time of such termination, and, in the case of termination pursuant to clause (i)(2) above as promptly as possible (but in any event within two (2) Business Days following the entry by the Company or its Subsidiary into the definitive agreements in connection with the Competing Transaction).
(b) Parent will pay, or cause to be paid, to the Company an amount equal to US$10,000,000 (the “Parent Termination Fee”) if this Agreement is terminated by the Company pursuant to Section 8.1(c)(iii8.03(a) or 8.03(b), such payment to be made as promptly as possible (but in each caseany event within five (5) Business Days) following such termination. In addition, in the event that this Agreement is validly terminated in by either the Company or Parent in accordance with Section 8.02(a) and the condition set forth in Section 7.02(e) has not been satisfied by the Termination Date, Parent will pay, or cause to be paid, to the Company an amount equal to US$2,000,000, such payment to be made promptly (but in any event no later than five (5) Business Days) following such termination.
(c) 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 all costs and expenses actually incurred or accrued by the other party (including, without limitation, 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 1.00%. Such collection expenses shall not otherwise diminish in any time at which way the payment obligations hereunder.
(d) Each of the Company, Parent was entitled 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 (iii) without the agreements contained in this Section 8.06, the parties hereto would not have entered into this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement but subject to Section 9.07, 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 (whether willfully, intentionally, unintentionally or otherwise) or otherwise fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then the Company’s right to terminate this Agreement and receive the Parent Termination Fee pursuant to Section 8.1(c)(i8.06(b) or Section 8.1(c)(ii)), within one (1) business day after and the guarantee of such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable obligations pursuant to the preceding clauses Guaranties (subject to their terms, conditions and limitations), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any Group Company and all members of the Company Group (as defined below) against (i)) Parent, Merger Sub, the Guarantors, (ii) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of Parent, Merger Sub or any Guarantor, (iii) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent, Merger Sub or any Guarantor or (iiiiv) any holders or future holders of any equity, stock, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any of the foregoing (clauses (i) - (iv), such amount shall collectively, the “Parent Group”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) or failure to perform hereunder (whether willfully, intentionally, unintentionally or otherwise) or other failure of the Merger to be paid by wire transfer of immediately available funds to an account designated in writing by Parent consummated (andwhether willfully, if any amount becomes payable pursuant to any such clauseintentionally, such amount shall not be unintentionally or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingotherwise).
(v) . For the avoidance of doubt, neither Parent nor any 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 Letters, the Guaranties and the Debt Commitment Letter) other than the payment of the Parent Termination Fee pursuant to Section 8.06(b), 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 Letters, the Guaranties and the Debt Commitment Letter), 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), or the Guarantors to the extent provided in the Guaranties.
Appears in 1 contract
Sources: Merger Agreement (Kongzhong Corp)
Termination Fee. (ia) In the event that that:
(Ai) Parent or this Agreement is terminated pursuant to (x) 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 8.1(b)(i8.1(c)(ii)), or (z) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) 8.1(d)(ii), and (BA) at any time after the date of this Agreement and prior to such termination, a Competing the Company Meeting an Alternative Proposal shall have been publicly disclosed announced or otherwise been publicly communicated to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, (B) within nine (9) 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 enters into a definitive agreement providing forshall 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, or recommends to its stockholdersthe Company shall, a Competing Proposal or a Competing Proposal is consummated(A) in the case of clause (i) above, then within one no later than two (12) business day Business Days after the date of the occurrence of the applicable event described in this 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 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 pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates terminated this Agreement pursuant to Section 8.1(d)(i8.1(c)(ii), concurrently with such termination, ; or
(ii) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates have terminated this Agreement pursuant to Section 8.1(c)(i8.1(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 8.1(c)(ii8.3(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 (or collectively, the “Parent Related Parties”) for all losses and damages suffered in connection with this Agreement is terminated 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 8.1(b)(i) or Section 8.1(b)(iii) or Parent 8.3(a), in circumstances where the Company Termination Fee is owed and paid in full pursuant to Section 8.1(c)(iii8.3(a), in each caseshall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective, following 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 time at which Parent was entitled breach or failure to terminate this Agreement pursuant perform hereunder giving rise to Section 8.1(c)(i) or Section 8.1(c)(ii)), within one (1) business day after 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 pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant also be obligated with respect to the preceding clauses 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 7.1 and Section 7.3 (other than 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) have been satisfied at the time when the Closing would have occurred but for the failure of the Equity Financing to be funded, and remain satisfied, (ii) the financing provided for by the Debt Commitment Letters (or, if Alternative Financing is being used in accordance with Section 6.11, pursuant to 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), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant ) with respect to any such clausefunding of the Equity Financing to occur at the Closing, such amount shall not be or become due unless the Company has irrevocably confirmed that if specific performance is granted and until the Equity Financing and Debt Financing are funded, then the Closing will occur and (iv) Parent has provided such wire transfer instructions for such designated account fails to consummate the Closing in writing).
(v) accordance with Section 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. (ia) In the event that (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(i7.1(d)(ii), the Company shall pay or cause to be paid as directed by Parent the Company Termination Fee substantially 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), the Company shall pay or cause to be paid as directed by Parent the Company Termination Fee within two (2) Business Days of such termination.
(c) In the event that:
(i) this Agreement is terminated pursuant to Section 7.1(b)(i), Section 7.1(b)(iii) or Section 8.1(b)(iii7.1(c)(i);
(ii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) following the execution and (B) after the date delivery of this Agreement and prior to such terminationtermination of this Agreement, a Competing Takeover Proposal shall have been publicly disclosed announced or shall have become publicly known, or shall have been communicated or otherwise publicly communicated made known to the Company Board or the Company’s stockholders , and not publicly and unconditionally withdrawn or abandoned, then if, at least three (3) Business Days prior to the date of the Company Shareholder Meeting; and
(iii) within nine twelve (912) months following such termination of such terminationthis Agreement, either a Takeover Proposal (whether or not the Takeover Proposal referenced in the preceding clause (ii)) is consummated or the Company enters into a definitive agreement Company Acquisition Agreement providing forfor a Takeover Proposal, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i7.3(c), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of “Takeover Proposal” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay or cause 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 be paid as directed by Parent or the Company pursuant to Section 8.1(b)(iTermination Fee concurrent with the earlier of (x) 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 consummating such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (i), (ii) Takeover Proposal or (iii), y) entering into such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)a Company Acquisition Agreement.
(v) 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. If: ---------------
(i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such termination, a Competing Proposal The Buyer 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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)(i7(a)(iv); or
(ii) (x) either the Target or the Buyer shall terminate this Agreement pursuant to Section 8.1(c)(ii)7(a)(ii)(B), (y) prior to the Special Meeting a Takeover Proposal relating to the Target has been made to the Target or to the stockholders of the Target by any Person and (z) within one (1) business day 6 months after such terminationthe termination of this Agreement, the Company Target enters into a definitive agreement in respect of any Takeover Proposal or consummates any Takeover Proposal; or
(iii) any Person shall pay have made to Parent 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 6 months after the termination of this Agreement, the Target enters into a definitive agreement in respect of any Takeover Proposal or a Parent Subsidiary designated by Parent) the Termination Fee.consummates any Takeover Proposal; or
(iv) In the event any amount is payable Buyer shall terminate this Agreement pursuant to Section 7(a)(vi), (x) prior thereto a Takeover Proposal relating to the preceding clauses Target has been made to the Target or to the stockholders of the Target by any Person and (y) within 6 months after the termination of this Agreement, the Target enters into a definitive agreement in respect of any Takeover Proposal or consummates any Takeover Proposal, then in any case as described in clause (i), (ii), (iii) or (iiiiv), such amount the Target shall be paid pay to the Buyer (by wire transfer of immediately available funds funds) an amount equal to an account designated $2,000,000 (not later than the date of termination of this Agreement in writing by Parent the case of clause (andi) and not later than the date of execution of such alternative acquisition agreement or consummation of such alternate Takeover Proposal in the case of clauses (ii), if any amount becomes payable pursuant to any such clause, such amount shall not be (iii) or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing(iv)).
(v) 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. (ia) In the event that that:
(i) (A) Parent a Takeover Proposal shall have been made, proposed or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) communicated, after the date of this Agreement and not withdrawn prior to such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to the Company Board Stockholders Meeting or prior to the Company’s stockholders termination of this Agreement if there has been no Company Stockholders Meeting, and not publicly (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) or by Parent pursuant to Section 7.1(c)(i) and unconditionally withdrawn or abandoned, then if, within nine (9C) months of such termination, the Company enters into a definitive agreement providing forwith respect to any Takeover Proposal, or recommends to its stockholders, a Competing Proposal or a Competing any Takeover Proposal is consummated, then in either case within one (1) business day year after the occurrence of the applicable event described in date this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely Agreement; provided that for purposes of clause (C) of this Section 8.2(b)(i7.3(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.; or
(ii) If this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(d)(i7.1(d)(ii), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.; or
(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)(iii7.1(c)(ii); then, 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) In the event any amount is payable pursuant to the preceding clauses under clause (i), (ii) or (iii) of this Section 7.3(a), such amount the Company shall be paid pay as directed by Parent the Termination Fee (as defined below), by wire transfer of immediately available funds (x) in the case of Section 7.3(a)(iii), within two (2) business days after such termination, (y) prior to an account designated in writing by Parent (and, or currently with such termination if any amount becomes payable pursuant to any such clauseSection 7.1(d)(ii), such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account (z) in writingthe case of Section 7.3(a)(i).
, two (v2) For business days after the avoidance earlier of doubt, the entry into a Company Acquisition Agreement or the consummation of 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. (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 's stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “"Termination Fee”"). Solely for purposes of this Section 8.2(b)(i), the term “"Competing Proposal” " shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “"15%” " therein shall be deemed to be “"50%” " and all references to “"85%” " therein shall be deemed to be “"50%”".
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. (i) In the event that If (A) (x) Parent or terminates this Agreement pursuant to Section 8.1(d), (y) the Company terminates this Agreement pursuant to Section 8.1(b)(i8.1(d) and at such time Parent would be permitted to terminate this Agreement pursuant to Section 8.1(d), or Section 8.1(b)(iii(z) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii8.1(c) and 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 of this Agreement hereof and prior to the date of such terminationtermination (except in the case of termination pursuant to Section 8.1(g), in which case prior to the Company Stockholder Approval being obtained) a Competing bona fide Acquisition Proposal shall have been is publicly disclosed (whether by the Company or a third party), or otherwise publicly communicated made known to the Company Board of Directors or Company management, and in each case, is not withdrawn (publicly, if publicly disclosed) at least three (3) Business Days prior to the Company’s stockholders earlier of the date of the Company Stockholders Meeting and not publicly the date of such termination and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such termination, the Company enters into an Acquisition Proposal is consummated or a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing in respect of an Acquisition Proposal is consummatedentered into, then within one on or prior to the date that is the earlier of (1) business day after the occurrence of the applicable event described in this clause date any such Acquisition Proposal is consummated and (2) the date of entry in any such definitive agreement, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 450,000,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)Annex A, except that all references to “fifteen percent (15%)” and “eighty five percent (85%)” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “fifty percent (50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. (ia) In the event that (A) Parent or the Company terminates this Agreement pursuant Acquiror shall be entitled to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash 32.5 million (the “"Termination Fee”). Solely for purposes ") upon the occurrence of this Section 8.2(b)(i), any of the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein following events (each a "Termination Fee Event") which shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.paid by Company within the time specified in respect of each such Termination Fee Event:
(iii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 Acquiror pursuant to Section 8.2(c)(i) (Change in recommendation) 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 pursuant to Section 8.1(b)(i8.2(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 8.1(b)(iii8.2(c)(v) or Parent (Special Meeting has not occurred), by either Party pursuant to Section 8.1(c)(iii), 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 each case, following any time at which Parent was circumstances where Acquiror would also be entitled to terminate this Agreement pursuant to Section 8.1(c)(i8.2(c)(iii), Section 8.2(c)(iv), Section 8.2(c)(v) or Section 8.1(c)(ii8.2(b)(iii)), but only if, in the case of this Section 8.3(a)(iii), prior to the termination of this Agreement, an Acquisition Proposal shall have been made to Company, or the intention to make an Acquisition Proposal with respect to Company shall have been publicly announced by any Person (other than Acquiror or any of its affiliates), and if within one (1) business day after nine months following the date of such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. (ia) In the event that that:
(i) (A) Parent a Competing Proposal relating to a Competing Transaction shall have been made or proposed (and not withdrawn), after the date hereof and prior to the Shareholders Meeting (or prior to the termination of this Agreement if there has been no Shareholders Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i8.02(a) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) 8.02(c), and (BC) within twelve (12) months after the date termination 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 abandoned, then if, within nine (9) months of such terminationAgreement, the Company or any of its Subsidiaries consummates, or enters into a definitive agreement providing forin connection with, such Competing Transaction, whether or recommends not such Competing Transaction was the same Competing Transaction referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”A). Solely ; provided, that for purposes of this Section 8.2(b)(i8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.);
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(i8.03(c) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii8.03(d), 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, then the Company shall pay pay, or cause to be paid, to Parent or its designees an amount in cash equal to $25,000,000 (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid by wire transfer of same day funds as promptly as possible (but in any event (x) within two (2) 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 available funds to an account designated after the termination of this Agreement in writing by Parent (and, if any amount becomes payable case of a termination pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingclause (iii) above).
(v) For the avoidance of doubt, ; it being agreed that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasiononce.
(b) Parent will pay, or cause to be paid, to the Company or its designees (i) an amount in cash equal to $50,000,000 (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 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 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 1.00% 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 (iii) 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 Equity Commitment Letter, the Debt Commitment Letters 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 the guarantee of such obligations pursuant to the Limited Guarantee (subject to their terms, conditions and limitations), (ii) if applicable, receive reimbursement and indemnification pursuant to Section 6.07(g), and (iii) if applicable, receive reimbursement and interest pursuant to Section 8.06(d) (clauses (ii) and (iii) together, 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, New Wave, the Guarantor or 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, Representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of Parent, Merger Sub, New Wave, the Guarantor or Rollover Shareholders, (C) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent, Merger Sub or the Guarantor, or (D) 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 (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, 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 Equity Commitment Letter, the Limited Guarantee and the Debt Commitment Letters) 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 Equity Commitment Letter, the Limited Guarantee and the Debt Commitment Letters), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.06(b), Section 8.06(d) and Section 6.07(g), or the Rollover Shareholders or the Guarantor to the extent provided in the relevant Equity Commitment Letter, the Support Agreement or Limited Guarantee. This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the Parent Group.
(ii) 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). This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the Company Group.
(iii) Notwithstanding anything to the contrary in this Agreement, the Financing Documents, the Limited Guarantee, the Support Agreement 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 Parent Group collectively (A) under this Agreement or any other Transaction Document, (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the 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, shall not exceed under any circumstances an amount equal to the 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 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 Agreement or any other Transaction Document, (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the 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, shall not exceed under any circumstances an amount equal to the sum of (i) the Company Termination Fee, if any, due and owing to the Parent 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 (Sina Corp)
Termination Fee. (ia) In the event that: (i) 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 a Takeover Proposal shall have been publicly made, proposed or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) communicated by a third party after the date of this Agreement and not withdrawn prior to, in the case of a termination pursuant to such terminationSection 7.01(b)(iii), a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to the earlier of the completion of the Company Board Shareholders’ Meeting (including any adjournment or postponement thereof) and the Company’s stockholders 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 not publicly and unconditionally withdrawn or abandoned, then if, (B) within nine (9) 12 months of such terminationthe date this Agreement is terminated, the Company enters into a definitive agreement providing for, with respect to a Takeover Proposal (whether or recommends not such Takeover Proposal was the same Takeover Proposal referred to its stockholders, a Competing Proposal or a Competing in clause (A) and such Takeover Proposal is consummated, then within one subsequently consummated (1) business day even if after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”12 month period). Solely ); provided that, for purposes of clauses (B) and (C) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
; or (ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 (A) by Parent pursuant to Section 7.01(c)(ii) or (B) by the Company pursuant to Section 8.1(b)(i7.01(d)(ii); then, in any such event under clause (i) or (ii) of this Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii7.03(a), the Company shall pay, or cause to be paid, the Company Termination Fee to Parent or its designee by wire transfer of same-day funds (x) in each case, following any time at which Parent was entitled to terminate this Agreement pursuant to the case of Section 8.1(c)(i) or Section 8.1(c)(ii)7.03(a)(ii)(A), within one (1) two business day days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii)(B), (ii) prior to or concurrently with such termination or (iiiz) in the case of Section 7.03(a)(i), such amount shall be paid by wire transfer within two business days after the consummation of immediately available funds the Takeover Proposal referred to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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.
Appears in 1 contract
Sources: Merger Agreement
Termination Fee. (ia) In the event that: (i) 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 a bona fide Takeover Proposal shall have been publicly made, publicly proposed or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) otherwise publicly communicated after the date of this Agreement and not withdrawn prior to such termination, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to the earlier of the completion of the Company Board Stockholders’ Meeting (including any adjournment or postponement thereof) and the Company’s stockholders time of termination and not publicly and unconditionally withdrawn or abandoned, then if, (B) within nine (9) twelve months of such terminationthe date this Agreement is terminated, the Company enters into a definitive agreement providing for, with respect to a Takeover Proposal (whether or recommends not such Takeover Proposal was the same Takeover Proposal referred to its stockholders, a Competing Proposal or a Competing in clause (A)) and such Takeover Proposal is consummatedsubsequently consummated (even if after such twelve-month period); provided that, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of clauses (A) and (B) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1525%” therein in the definition of Takeover Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
; or 60 (ii) If the Company terminates this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(i7.01(c)(ii) or (B) by the Company pursuant to Section 7.01(d)(ii); then, concurrently with in any such terminationevent under clause (i) or (ii) of this Section 7.03(a), the Company shall pay the Company Termination Fee to Parent or its designee by wire transfer of same day funds (or a Parent Subsidiary designated by Parentx) in the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to case of 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)7.03(a)(ii)(A), within one (1) two business day days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii)(B), (ii) simultaneously with such termination or (iiiz) in the case of Section 7.03(a)(i), such amount shall be paid by wire transfer within two business days after the consummation of immediately available funds the Takeover Proposal referred to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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. As used herein, “Company Termination Fee” shall mean a cash amount equal to $177,000,000.
(b) In the event 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 the Parent Related Parties 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. ARTICLE VIII Miscellaneous SECTION 8.01.
Appears in 1 contract
Sources: Merger Agreement
Termination Fee. If:
(ia) In GSK shall terminate this Agreement as a result of any action or inaction of the event that (A) Parent or board of directors of the Company terminates pursuant to Section 7.2(c)(iii); or
(b) the Company shall terminate this Agreement in order to enter into a Superior Proposal pursuant to Section 7.2(c)(iv); or
(c) either the Company or GSK shall terminate this Agreement pursuant to Section 8.1(b)(i7.2(c)(v) in circumstances where the Arrangement Resolution or Section 8.1(b)(iiithe Rights Plan Waiver Resolution have not received the required shareholder approval at the Meeting and: (A) a bona fide Acquisition Proposal has been publicly announced or Parent terminates this Agreement pursuant made by any person other than GSK prior to Section 8.1(c)(iii) the Meeting and not withdrawn more than three Business Days prior to the Meeting, and (B) the Company enters into an agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, with such person, after the date of such termination 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 expiration of 12 months following the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months date of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, termination of this Agreement; then within one (1) business day after the occurrence of the applicable event described in this clause (2) any such case the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) GSK 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), Fee 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) In the event any amount is payable 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 by GSK. Such payment shall be due (A) in writing the case of a termination specified in Section 7.4(a), within five Business Days after written notice of termination by Parent GSK, or (andB) in case of a termination specified in Section 7.4(b), if any amount becomes payable pursuant on or prior to any such clausethe termination of this Agreement, such amount or (C) in the case of a termination specified in Section 7.4(c), at or prior to the earlier of the entering into of the agreement and the consummation of the transaction referred to therein. The Company shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on make more than one occasionpayment pursuant to this Section 7.4.
Appears in 1 contract
Termination Fee. (a) The Company shall pay Parent, by wire transfer of immediately available funds to an account designated by Parent, a fee of $1,400,000, plus the amount of all of the reasonable fees and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (not to exceed $400,000) (the "Termination Fee") as follows:
(i) In if Parent terminates this Agreement pursuant to Section 9.1(a)(iii)(B), the event that Company shall pay Parent the Termination Fee in full on the second Business Day following the date of such termination;
(ii) if the Company terminates this Agreement pursuant to Section 9.1(a)(v), the Company shall pay Parent the Termination Fee in full prior to or concurrently with such termination; or
(iii) if (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i9.1(a)(ii)(A) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii9.1(a)(ii)C) and (B) after the date of this Agreement and (i) prior to any such termination, a Competing Proposal termination but following the Agreement Date any Person shall have been publicly disclosed or otherwise publicly communicated made to the Company Board or the Company’s stockholders Company Shareholders, or publicly announced, a proposal or offer for any Acquisition Transaction that is not subsequently withdrawn and not publicly and unconditionally withdrawn (ii) within 12 months following termination of this Agreement, any Acquisition Transaction with respect to the Company is consummated or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement Contract providing forfor any Acquisition Transaction, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (the Termination Fee concurrently with the earlier of the date of the consummation of such Acquisition Transaction or a Parent Subsidiary designated by Parent) a fee the execution of $69,750,000 in cash (the “Termination Fee”)such Contract, as applicable. Solely for For purposes of this Section 8.2(b)(i)9.4, the term “Competing Proposal” "Acquisition Transaction" shall have the meaning assigned given to such term in Section 5.3(j)(i)5.7(a) hereof, except that all references each reference to “15"80%” " or "20%" therein shall be deemed to be “have been changed to "50%” and all references to “85%” therein shall be deemed to be “50%”".
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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 (Aptimus Inc)
Termination Fee. (ia) In the event that (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(i9.1(c)(ii), then the Company shall pay to Parent the Termination Fee concurrently with any such termination.
(b) or Section 8.1(b)(iii) or Parent terminates In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(iii9.1(d)(ii), the Company shall pay to Parent an amount equal to (x) 50% of the Termination Fee and (By) the Parent Expenses as promptly as possible (but in any event within four Business Days) following such termination of this Agreement. In addition, in the event that (i) any such termination occurs pursuant to Section 9.1(d)(ii), (ii) at any time after the date of this Agreement and prior to such terminationtermination of this Agreement, a Competing Company Acquisition Proposal shall have been publicly disclosed or otherwise publicly communicated to the announced and such Company Board or the Company’s stockholders and Acquisition Proposal is not publicly and unconditionally withdrawn or abandonedterminated prior to such termination of this Agreement, then if, and (iii) within nine (9) months after such termination of such terminationthis Agreement, the Company or any of its Subsidiaries enters into (and thereafter consummates) a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates, a Competing any Company Acquisition Proposal (whether or a Competing Proposal is consummatednot the same as that originally announced), then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee an amount equal to 50% of $69,750,000 in cash (the “Termination Fee”, less the amount of Parent Expenses previously paid to Parent by the Company pursuant to this Section 9.2(b), as promptly as possible (but in any event within four Business Days) following such consummation. Solely for For purposes of this Section 8.2(b)(i9.2(b), the term “Competing Company Acquisition Proposal” shall have the meaning assigned to such term set forth in the definition of Company Acquisition Proposal contained in Section 5.3(j)(i), except that all 7.4 but references therein to “1520%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be replaced with “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. (ia) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 (x) by Parent or the Company pursuant to Section 8.1(b)(i7.1(b)(iii) or Section 8.1(b)(iii(y) or by Parent pursuant to Section 8.1(c)(iii7.1(c)(i), 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, then the Company shall pay to or as directed by Parent all of the Expenses of Parent, Purchaser and their respective Subsidiaries, Affiliates and Representatives in an amount not to exceed $5,500,000 in the aggregate (or a the “Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (iExpenses”), (ii) or (iii), such amount shall be paid by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, prior to or substantially concurrently with the termination of this Agreement. To the extent a Termination Fee becomes payable, any payment previously made pursuant to this Section 7.3(a) shall be credited against such obligation of the Company to pay the Termination Fee.
(b) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii), the Company shall promptly pay or cause to be paid to or as directed by Parent the Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, prior to or substantially concurrently with, and as a condition to the effectiveness of, the termination of this Agreement.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii), the Company shall pay or cause to be paid to or as directed by Parent the Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent within five (and, if any amount becomes payable pursuant to any 5) Business Days of such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)termination.
(vd) For In the avoidance of doubt, in no event shall that this Agreement is terminated (i) (A) by Parent or the Company pursuant to Section 7.1(b)(i), (B) by the Company or Parent pursuant to Section 7.1(b)(iii) or (C) by Parent pursuant to Section 7.1(c)(i), (ii) prior to such termination, a Takeover Proposal shall have been publicly disclosed after the date hereof and not publicly withdrawn prior to the date of such termination, and (iii) within twelve (12) months of the date this Agreement is terminated, the Company consummates the transactions contemplated by such Takeover Proposal (provided that for purposes of clause (iii) of this Section 7.3(d), the references to “15%” in the definition of Takeover Proposal shall be obligated deemed to be references to “50%”), then the Company shall pay or cause to be paid to or as directed by Parent the Termination Fee (less the amount of any Parent Expenses previously paid to Parent pursuant to Section 7.3(a), if any), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, on more than one occasionthe date of consummation of such transaction. If, in order to collect the Termination Fee or any Parent Expenses pursuant to Sections 7.3(a), (b), (c) or this Section 7.4(d), Parent commences a proceeding, claim, suit, arbitration or action that results in a judgment in favor of Parent for the payment of the Termination Fee or any Parent Expenses, the Company will pay to Parent all of Parent’s reasonable and documented attorneys’ fees and expenses and other costs and expenses incurred in connection with such proceeding, claim, suit, arbitration or action.
(e) In the event that this Agreement is terminated by (i) the Company pursuant to Section 7.1(d)(iii) or (ii) the Company or Parent pursuant to Section 7.1(b)(i) if, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 7.1(d)(iii), Parent shall pay or cause to be paid to the Company the Parent Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by the Company within five (5) Business Days of such termination. If, in order to collect the Parent Termination Fee, the Company commences a proceeding, claim, suit, arbitration or action that results in a judgment in favor of the Company for the payment of the Parent Termination Fee, Parent will pay to the Company all of the Company’s reasonable and documented attorneys’ fees and expenses and other costs and expenses incurred in connection with such proceeding, claim, suit, arbitration or action.
(f) Subject to the Company’s right to specific performance in accordance with, and subject to the limitations of, Section 8.9, notwithstanding anything else in this Agreement, the Company acknowledges and agrees on behalf of itself, its Affiliates and the Company Stockholders, that in the event that the Company receives full payment of the Parent Termination Fee pursuant to Section 7.3(e) in circumstances where the Parent Termination Fee is owed: (i) the Parent Termination Fee shall constitute the sole and exclusive remedy of the Company, its Affiliates and the Company Stockholders, (ii) the Parent Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company, its Affiliates and the Company Stockholders in connection with this Agreement and the Equity Funding Letters (and the termination of any of the foregoing), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination (or for any breach or failure to perform hereunder or otherwise (in each case, whether willfully, intentionally, unintentionally or otherwise)), and (iii) Parent, Purchaser and any of their respective Subsidiaries and Affiliates or any of the former, current or future general or limited partners, shareholders, managers, members, directors, officers, employees, direct or indirect equityholders or Representatives of any of the foregoing (collectively, but excluding Parent and Purchaser, the “Parent Related Parties”) shall not have any further liability, whether pursuant to a claim in contract or tort, at law or in equity or otherwise, to the Company, any of its Affiliates or the Company Stockholders under this Agreement or the Equity Funding Letters (and the termination of any of the foregoing), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination.
(g) For purposes of this Agreement, “Termination Fee” shall mean an amount equal to $15,000,000.
Appears in 1 contract
Sources: Merger Agreement (Epiq Systems Inc)
Termination Fee. (ia) In the event The Parties agree that (A) if this Agreement is terminated by Parent or pursuant to Section 8.1(e), then the Company terminates 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 8.1(d) or Section 8.1(g); (x) in the case of a termination pursuant to Section 8.1(d), at the time of such termination, the conditions set forth in Section 7.1(b) and Section 7.1(c) have been satisfied or are 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)(i8.1(b), Section 8.1(d) or Section 8.1(b)(iii8.1(g), as applicable, an Acquisition Proposal has been publicly announced and not publicly withdrawn or not otherwise publicly abandoned at least two (2) or Parent terminates this Agreement Business Days prior to the Company Stockholders’ Meeting (in the case of a termination pursuant to Section 8.1(c)(iii8.1(b)) and (B) after or prior to the date of this Agreement such termination (in the case of a termination pursuant to Section 8.1(d) or Section 8.1(g)); and prior to such termination, a Competing (z) an Acquisition Proposal shall have been publicly disclosed is consummated or otherwise publicly communicated to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing Proposal or a Competing an Acquisition Proposal is consummatedentered into (in either case, whether or not the same Acquisition Proposal referred to in clause (y)), in either case, within twelve (12) months after such termination pursuant to Section 8.1(b), Section 8.1(d) or Section 8.1(g), as applicable, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay or cause to Parent (be paid the Termination Fee to Parent, on the earlier of the date of consummation of such Acquisition Proposal or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”)entry into such definitive agreement. Solely for For purposes of this Section 8.2(b)(i8.3(c), the term “Competing Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)Annex A, except that all the references to “15twenty percent” (“20%”) and “eighty percent” therein (“80%”) shall be deemed to be “50%” and all references to “85%fifty percent” therein shall be deemed to be (“50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. (ia) In the event that that:
(i) (A) Parent a bona fide Acquisition Proposal 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 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) if there has been no Shareholders’ Meeting), and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after following the occurrence of the applicable an event described in this the preceding clause (2A), this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii) and (C) within 12 months of the termination of this Agreement, any Acquisition Proposal by a third party is entered into, agreed to or consummated by the Company (in each case whether or not the Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)); or
(ii) (A) this Agreement is terminated by Parent pursuant to Section 9.1(c) or (B) this Agreement is terminated by the Company pursuant to Section 9.1(d)(ii); then the Company shall pay if and as directed by Parent or its designee a cash amount equal to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash US$475,000 (the “Termination Fee”)) to Parent or its designee by wire transfer of same day funds. Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the The Company shall pay 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)), Fee within one (1) three business day days after such termination, in the Company shall pay case of a termination referred to Parent in clause (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (iii), or on the earlier of the date on agreement is entered into with respect to an Acquisition Proposal or an Acquisition Proposal is consummated in the case of clause (ii) or (iii), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, ; it being understood that in no event shall the Company be obligated required to pay the applicable Termination Fee on more than one occasion. In the event that Parent or its designee shall receive full payment pursuant to this Section 9.3(a) and Section 9.3(c), together with reimbursement of any applicable expenses pursuant to Section 9.3(e), the receipt of the applicable Termination Fee, Parent Expenses and the expenses referred to Section 9.3(e) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or any other person in connection with this Agreement (and the termination hereof), the Debt Commitment Letter, the Promissory Note and Guarantee, any New Financing Documents and any definitive agreements with respect to the Debt Financing or any Alternate Financing, the transactions contemplated hereby and thereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its Affiliates arising out of or in connection with this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination; provided, however, that nothing in this Section 9.3(a) shall limit the rights of Parent and Merger Sub under Section 10.13. For the avoidance of doubt, subject to Section 10.13, in the event Parent or its designee shall receive payment from the Company of the Termination Fee, Parent Expenses and the expenses referred to in Section 9.3(e), the receipt of such Termination Fee, Parent Expenses and expenses shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amount(s), none of the Company Related Parties shall have any further liability or obligation arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination. Each of Parent and Merger Sub acknowledges and agrees that it has no right of recovery against, and in no event shall any of the Parent Related Parties seek to recover any damages from or make any claim against, any Company Related Party (other than its rights against the Company under this Agreement).
(b) In the event that the Company shall terminate this Agreement pursuant to Section 9.1(d)(i) or Section 9.1(d)(iii), then Parent shall pay, or cause to be paid, to the Company a cash amount equal to US$950,000 (the “Parent Termination Fee”) by wire transfer of same day funds, within three business days after such termination. In the event that the Company shall receive full payment pursuant to this Section 9.3(b) and Section 9.3(d), together with reimbursement of any applicable expenses pursuant to Section 9.3(e), the receipt of the Parent Termination Fee and such expenses shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company or any other Person in connection with this Agreement, the Debt Commitment Letter, the Promissory Note and Guarantee, any New Financing Documents and any definitive agreements with respect to the Debt Financing or any Alternate Financing, 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 claim, action or proceeding against Parent, Merger Sub or any of their respective former, current or future Representatives or Affiliates arising out of or in connection with this Agreement, the Debt Commitment Letter, the Promissory Note and Guarantee, any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination; provided, however, that nothing in this Section 9.3(b) shall limit the rights of the Company under Section 10.13. For the avoidance of doubt, the right of the Company and its designees to receive payment from Parent of the Parent Termination Fee, Company Expenses and the expenses referred to in Section 9.3(e) shall be the sole and exclusive remedy of the Company Related Parties against the Parent Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amount(s), none of the Parent Related Parties shall have any further liability or obligation arising out of or in connection with this Agreement, any of the transactions contemplated hereby and thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination. The Company acknowledges and agrees that it has no right of recovery against, and in no event shall any of the Company Related Parties seek to recover any damages from or make any claim against, any Parent Related Party (other than its rights against Parent or Merger Sub under this Agreement or against the Guarantor under the Limited Guaranty).
Appears in 1 contract
Sources: Agreement and Plan of Merger (China GrenTech CORP LTD)
Termination Fee. (ia) In the event that that:
(i) (A) Parent a Competing Proposal relating to a Competing Transaction shall have been made or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) proposed (and (Bnot withdrawn) after the date hereof and prior to the Shareholders Meeting (or prior to the termination of this Agreement and prior to such terminationif there has been no Shareholders Meeting), a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated to (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company Board or the Company’s stockholders Parent pursuant to Section 8.02(a) or Section 8.02(c), and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine (9) months after such termination of such terminationthis Agreement, the Company or any of its Subsidiaries enters into a definitive agreement providing forin connection with or consummates, such Competing Transaction (in each case whether or recommends not the Competing Transaction was the same Competing Transaction referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”A). Solely ); provided, that for purposes of this Section 8.2(b)(iSection 8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.);
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iiiSection 8.03(c), 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, then the Company shall pay pay, or cause to be paid, to Parent or its designees an amount in cash equal to $1,200,000 (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid 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 five (5) 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) at least two (2) Business Days prior to, concurrently with or immediately available funds to an account designated after the termination of this Agreement in writing by Parent (and, if any amount becomes payable case of a termination pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingclause (iii) above).
(v) For the avoidance of doubt, ; it being agreed that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasiononce.
(b) Parent will pay, or cause to be paid, to the Company or its designees an amount in cash equal to $1,800,000 (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 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 1.00% 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 (iii) 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 Equity Commitment Letter, the Facility Agreement and the Limited Guarantee, the Company’s right to (1) terminate this Agreement and receive the Parent Termination Fee pursuant to Section 8.06(b) and the guarantee of such obligations pursuant to the Limited Guarantee (subject to its terms, conditions and limitations), (2) if applicable, receive reimbursement and indemnification pursuant to Section 6.07(g), and (3) if applicable, receive reimbursement and interest pursuant to Section 8.06(d) (clauses (2) and (3) together, the “Company Reimbursement”), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any Group Company and all members of the Company Group against (A) Parent, Merger Sub, the Guarantor or the Rollover Shareholders, (B) the former, current and future direct or indirect holders of any equity, general 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, the Guarantor or Rollover Shareholders, (C) any financing source or other lender or prospective lender, lead arranger, arranger, agent or Representative of or to Parent, Merger Sub or the Guarantor, or (D) 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 (D) of this Section 8.06(f)(i), 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, the Limited Guarantee, the Support Agreement, the Consortium Agreement, the Interim Investors Agreement, the Facility Agreement and any other Financing Documents) 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 Equity Commitment Letter, the Limited Guarantee, the Support Agreement, the Consortium Agreement, the Interim Investors Agreement, the Facility Agreement and any other Financing Documents), other than (without duplication) from (A) Parent or Merger Sub to the extent provided in Section 8.06(b) and Section 8.06(d), or (B) the Guarantor or the Rollover Shareholders to the extent provided in the Limited Guarantee, Equity Commitment Letter or Support Agreement (subject to their respective terms, conditions and limitations). This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the Parent Group.
(ii) (ii) Subject to Section 9.08, Parent’s right to terminate this Agreement and receive the Company Termination Fee pursuant to Section 8.06(a) and reimbursement and interest 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 Rollover Shareholder or any member of the Parent Group against any member of the Company Group or any of their respective former, current or future employees, officers, partners, shareholders, agents, managers, members or Affiliates (each a “Company Related Party”) for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement under this Agreement or any certificate or other document delivered in connection herewith or failure to perform hereunder or other failure of the Merger to be consummated. Neither the Company nor any Company Related Party 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, any Rollover Shareholder 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 Company Related Party in connection with this Agreement (or any certificate or other document delivered in connection herewith) 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).
(iii) Notwithstanding anything to the contrary in this Agreement, the Financing Documents, the Limited Guarantee, the Support Agreement, the Consortium Agreement, the Interim Investors Agreement 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 Parent Group collectively (A) under this Agreement or any other Transaction Document, (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the 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, shall not exceed under any circumstances an amount equal to the 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 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 Agreement or any other Transaction Document, (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the 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, shall not exceed under any circumstances an amount equal to the sum of (i) the Company Termination Fee, if any, due and owing to Parent 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 (iClick Interactive Asia Group LTD)
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) In the event that (A) Parent or the Company terminates this Agreement is terminated pursuant to Section 8.1(b)(i7.1(b) or Section 8.1(b)(iii7.1(e)(ii), (ii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such termination, a Competing termination there exists an Acquisition Proposal shall have (whether or not such offer or proposal has been publicly disclosed rejected or otherwise publicly communicated has been withdrawn prior to the Company Board or the Company’s stockholders time of such termination), and not publicly and unconditionally withdrawn or abandoned, then if, (iii) within nine (9) 12 months of such termination, the Company enters into or any of its Subsidiaries accepts a definitive agreement providing written offer for, or recommends otherwise enters into an agreement to its stockholdersconsummate or consummates, a Competing an Acquisition Proposal or a Competing Proposal is consummated(which, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely solely for purposes of this Section 8.2(b)(i), the term “Competing clause (iii) shall mean an "Acquisition Proposal” shall have the meaning assigned to such term " as defined in Section 5.3(j)(i5.6(f), except that all references therein to “15"20%” therein " shall be deemed instead to be “"50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i"), concurrently with then upon the signing of a definitive agreement relating to such terminationAcquisition Proposal, or, if no such agreement is signed, then upon consummation of any such Acquisition Proposal, the Company shall promptly pay to the Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.;
(iiic) If Parent terminates this Agreement pursuant to Section 8.1(c)(iif (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)(iii7.1(d), in each caseand (ii) within 12 months of such a termination the Company or any of its Subsidiaries accepts a written offer for, following 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 no such agreement is signed, then upon consummation of 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 terminationAcquisition Proposal, the Company shall promptly pay to the Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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. (ia) In the event that that:
(i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) a Third Party shall have made a Competing Proposal after the date of this 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 prior to at the time of such terminationCompany Stockholders’ Meeting in the case of clause (x) or at the time of such breach in the case of clause (y), a Competing Proposal shall have has been publicly disclosed or otherwise publicly communicated to the Company Board or the Company’s stockholders announced and has not publicly been withdrawn, and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such terminationtermination of this Agreement, the Company consummates a transaction involving a Competing Proposal or enters into a definitive agreement providing for, or recommends to its stockholders, for the consummation of a Competing Proposal or a and such Competing Proposal is subsequently consummated; provided, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely however, that for purposes of this Section 8.2(b)(i8.3(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “fifteen percent (15%)” therein in the definition of Competing Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “fifty percent (50%)”.;
(ii) If this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(d)(i8.1(c)(ii), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.; or
(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)(iii8.1(d)(ii), then the Company shall (A) in each casethe case of clause (i) above, no later than two (2) Business Days following any time at which Parent was entitled the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii)), within one (1) business day after substantially concurrently with such termination, and (C) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or case of this clause (iii), no later than two (2) Business Days after the date of such amount shall termination, pay, or cause to be paid paid, by wire transfer of immediately available funds to an account designated in writing by Parent (andfunds, if any amount becomes payable pursuant to any such clauseat the direction of Parent, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, Termination 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. (ia) In the event that that:
(i) (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 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and if there has been no Shareholders Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.02(a) or Section 8.02(c), and (C) within twelve (12) months after the date termination 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 abandoned, then if, within nine (9) months of such terminationAgreement, the Company or any of its Subsidiaries consummates or enters into a definitive agreement providing forin connection with such Competing Transaction, whether or recommends not such Competing Transaction was the same Competing Transaction referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”A). Solely ; provided, that for purposes of this Section 8.2(b)(i8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.;
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(iSection 8.03(c) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii8.03(d), 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, then the Company shall pay pay, or cause to be paid, to Parent or its designees an amount in cash equal to US$3,421,020.93 (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid by wire transfer of same day funds as promptly as possible (but in any event (x) within two (2) 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 available funds to an account designated after the termination of this Agreement in writing by Parent (and, if any amount becomes payable case of a termination pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingclause (iii) above).
(v) For the avoidance of doubt, ; it being agreed that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasiononce.
(b) Subject to Section 9.08, Parent will pay, or cause to be paid, to the Company or its designees an amount in cash equal to US$6,842,041.87 (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 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 1.00% 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) to the extent relevant, 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) would otherwise not be a penalty but rather would constitute amounts akin to liquidated damages in a reasonable amount that would 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 (iii) 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 Financing Document and the Limited Guarantees, the Company’s right to (i) terminate this Agreement and receive the Parent Termination Fee pursuant to Section 8.06(b) and the guarantee of such obligations pursuant to the Limited Guarantees (subject to their terms, conditions and limitations), (ii) if applicable, receive reimbursement and indemnification pursuant to Section 6.07(g), and (iii) if applicable, receive reimbursement and interest pursuant to Section 8.06(d) (such reimbursement, indemnification, costs and expenses in clauses (ii) and (iii), collectively, 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, Chairman, Chairman Entities, the Guarantors or the Rollover Shareholders, or (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, Chairman, Chairman Entities, the Guarantors or any Rollover Shareholder, (C) any Financing Source or other lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent, Merger Sub or the Guarantors, or (D) 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 (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, 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 Financing Document, the Support Agreements and the Limited Guarantees) 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 Financing Document, the Support Agreements and the Limited Guarantees), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.06(b), Section 8.06(d) and Section 6.07(g), or the Guarantors to the extent provided in the relevant Limited Guarantee. This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the Parent Group.
(ii) 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). This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the Company Group.
(iii) Notwithstanding anything to the contrary in this Agreement, the Financing Documents, the Support Agreements and the Limited Guarantees 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 Parent Group collectively (A) under this Agreement or any other Transaction Document, (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the 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, shall not exceed under any circumstances an amount equal to the 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 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 Agreement or any other Transaction Document, (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the 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, shall not exceed under any circumstances an amount equal to the sum of (i) the Company Termination Fee, if any, due and owing to Parent pursuant to Section 8.06(a) and (ii) the amounts, if any, due and owing under Section 8.06(d).
Appears in 1 contract
Termination Fee. (ia) In the event The Parties agree that (A) if this Agreement is terminated by Parent or pursuant to Section 8.1(e), then the Company terminates 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 8.1(d) or Section 8.1(g); (x) in the case of a termination pursuant to Section 8.1(d), at the time of such termination the conditions set forth in Section 7.1(b) and Section 7.1(c) have been satisfied or are 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)(i8.1(b), Section 8.1(d) or Section 8.1(b)(iii8.1(g), as applicable, an Acquisition Proposal has been publicly announced and not publicly withdrawn or not otherwise publicly abandoned at least two (2) or Parent terminates this Agreement Business Days prior to the Company Stockholders’ Meeting (in the case of a termination pursuant to Section 8.1(c)(iii8.1(b)) or prior to the date of such termination (in the case of a termination pursuant to Section 8.1(d) or Section 8.1(g)) and (Bz) after the date of this Agreement and prior to such termination, a Competing an Acquisition Proposal shall have been publicly disclosed is consummated or otherwise publicly communicated to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing Proposal or a Competing an Acquisition Proposal is consummatedentered into (in either case, whether or not the same Acquisition Proposal referred to in clause (y)), in either case, within twelve (12) months after such termination pursuant to Section 8.1(b), Section 8.1(d) or Section 8.1(g), as applicable, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay or cause to Parent (be paid the Termination Fee to Parent, on the earlier of the date of consummation of such Acquisition Proposal or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”)entry into such definitive agreement. Solely for For purposes of this Section 8.2(b)(i8.3(c), the term “Competing Acquisition Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)Annex A, except that all the references to “fifteen percent” (“15%”) and “eighty-five percent” therein (“85%”) shall be deemed to be “50%” and all references to “85%fifty percent” therein shall be deemed to be (“50%”).
(iid) If the Company terminates All payments under this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount 8.3 shall be paid made by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing)Parent.
(ve) Each of the Parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that without these agreements, Parent, Merger Sub and the Company would not enter into this Agreement. For the avoidance of doubt, in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion. Each of the Parties further acknowledges that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub in the circumstances in which the Termination 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. In addition, if the Company fails to pay in a timely manner any amount due pursuant to Section 8.3(a), Section 8.3(b) or Section 8.3(c) then (i) the Company shall reimburse Parent for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket disbursements and fees of outside legal counsel that are not contingency fees) incurred in the collection of such overdue amounts and (ii) the Company shall pay to Parent interest on the amounts payable pursuant to Section 8.3(a), Section 8.3(b) or Section 8.3(c) (as applicable) from and including the date payment of such amounts 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 or a lesser rate that is the maximum permitted by applicable Law.
(f) In the event that the Termination Fee becomes due and payable pursuant to this Section 8.3, and the Termination Fee (and any other amounts contemplated by Section 8.3(e)) is paid in accordance with this Section 8.3, (1) Parent’s receipt of the Termination Fee (and any other amounts contemplated by Section 8.3(e)) will be the only amount that Parent and Merger Sub and each of their respective affiliates may recover from (A) the Company, the Company Subsidiaries and their respective affiliates; and (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, the Company Subsidiaries and their respective affiliates (the Persons in clauses (A) and (B) collectively, the “Company Related Parties”) in respect of this Agreement, any agreement executed in connection herewith and the transactions contemplated hereby and thereby, the termination of this Agreement, the failure to consummate the Transactions, including the Merger, or any claims or actions under applicable Law arising out of any such termination or failure, and upon payment of such amount, (2) none of the Company Related Parties will have any further liability or obligation to Parent, Merger Sub or any of their respective affiliates relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby and thereby or any matters forming the basis of such termination, the failure to consummate the Transactions, including the Merger, or any claims or actions under applicable Law arising out of any such termination or failure (except that the Parties (or their respective affiliates) will remain obligated with respect to the Confidentiality Agreement and Section 8.3(e), as applicable); and (3) none of Parent, Merger Sub or any other Person will be entitled to bring or maintain any claim, action or proceeding against the Company or any Company Related Party arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby and thereby or any matters forming the basis for such termination the failure to consummate the Transactions, including the Merger, or any claims or actions under applicable Law arising out of any such termination or failure (except that the Parties (or their affiliates) will remain obligated with respect to the Confidentiality Agreement and Section 8.3(e), as applicable); provided, however, nothing in this Agreement (including payment of the Termination Fee) shall relieve the Company and the Company Subsidiaries of any liabilities or damages resulting from any Fraud or Willful and Material Breach that occurs prior to the termination of this Agreement.
Appears in 1 contract
Termination Fee. (ia) In the event that that:
(i) 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 the a Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such termination, a Competing Acquisition Proposal shall have been received by the Company or its Representatives or any Person shall have publicly disclosed proposed or otherwise publicly communicated announced an intention (whether or not conditional) to make a Company Acquisition Proposal prior to the Company Board or termination of this Agreement, (B) within 6 months after the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months date of such termination, the Company enters into a definitive agreement providing forin respect of any Company Acquisition Proposal, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then and (C) within one (1) business day 12 months after the occurrence date of the applicable event described in this clause (2) such termination, the Company shall pay to Parent consummates any Company Acquisition Proposal (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 8.2(b)(iclauses (B) and (C), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references each reference to “1520%” therein in the definition of Company Acquisition Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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); then, in the case of 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) In the event any amount is payable pursuant to the preceding clauses of (i), (ii) or and (iii), such amount 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 by ▇▇▇▇▇▇▇▇, (i) in writing by Parent the case of Section 8.03(a)(i), within two (and2) Business Days after the date of such termination, if any amount becomes payable pursuant (ii) in the case of Section 8.03(a)(ii), immediately prior to any or substantially concurrently with such clausetermination, such amount shall not be and (iii) in the case of Section 8.03(a)(iii), immediately prior to or become due unless and until Parent has provided such wire transfer instructions for such designated account substantially concurrently with the consummation of the Company Acquisition Proposal described in writingSection 8.03(a)(iii)(C).
(v) For . Notwithstanding anything to the avoidance of doubtcontrary set forth in this Agreement, the 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. (a) The Company shall pay to Parent a nonrefundable fee of $68,250,000 in the event that:
(i) In the event that (AA)(1) Parent a bona fide Acquisition Proposal shall have been publicly made or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) proposed after the date of this Agreement and not withdrawn at least three (3) business days prior to such termination, the Company Stockholders Meeting in the case of a Competing termination pursuant to Section 7.01(b)(iii) or (2) a bona fide Acquisition Proposal shall have been publicly disclosed made or proposed or otherwise publicly communicated made to the Company Board or the Company’s stockholders Company Board after the date of this Agreement and not publicly 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 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 or Parent pursuant to Section 7.01(b)(i) (at a time when the 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 unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such terminationthe date this Agreement is terminated, the Company consummates any Acquisition Proposal or enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing any Acquisition Proposal or a Competing Proposal that is thereafter consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely ; provided that for purposes of clause (C) of this Section 8.2(b)(i7.03(a)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of Acquisition Proposal shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.;
(ii) If this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(d)(i7.01(d)(ii), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.; or
(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 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), in 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 8.1(b)(i7.03(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 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)7.03(a)(iii), within one two (12) business day days after such termination, (y) in the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) In the event any amount is payable pursuant to the preceding clauses (icase of Section 7.03(a)(ii), (ii) prior to or simultaneously with such termination or (iiiz) in the case of Section 7.03(a)(i), two (2) business days after the consummation of such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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).
Appears in 1 contract
Sources: Merger Agreement (Hartford Financial Services Group Inc/De)
Termination Fee. (ia) In the event that that:
(i) (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 date hereof and prior to the Shareholders Meeting (or prior to the termination of this Agreement if there has been no Shareholders Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i8.02(a) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) 8.02(c), and (BC) within twelve (12) months after the date termination 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 abandoned, then if, within nine (9) months of such terminationAgreement, the Company or any of its Subsidiaries consummates, or enters into a definitive agreement providing forin connection with, any Competing Transaction by a Third Party (in each case whether or recommends not the Competing Transaction was the same Competing Transaction referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2A)) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided, that for purposes of this Section 8.2(b)(i8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.);
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 pursuant to Section 8.04; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(b)(i8.03(c) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii8.03(d), 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, then the Company shall pay pay, or cause to be paid, to Parent or its designees an amount in cash equal to US$1.5 million (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid by wire transfer of immediately available 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 an account designated in writing clause (ii) above, (y) prior to or concurrently with the entry by Parent the Company into the definitive agreement in connection with a Competing Transaction in the case of a termination referred to in clause (andi) above, if any amount becomes payable or (z) prior to or concurrently with the termination of this Agreement in case of a termination pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingclause (iii) above).
(v) For the avoidance of doubt, ; it being agreed that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasiononce.
(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 (iii) 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 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 “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 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 the extent provided in Section 6.07(e), Section 8.06(b) and Section 8.06(d), or the Guarantor to the extent provided in the Limited Guarantee.
(ii) Notwithstanding anything herein to the contrary, 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 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 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 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). 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 consummation of the Transactions and payment of the Company Termination Fee and reimbursement and interest in connection with the termination of this Agreement.
(iv) Notwithstanding anything to the contrary in this Agreement, 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 Parent Group collectively (including monetary damages for fraud or breach, whether willful, intentional, unintentional or otherwise, or monetary damages in lieu of specific performance) (A) under this Agreement or any other Transaction Document, (B) in connection with the failure of the Merger or the other transactions contemplated hereunder or under the Transaction Documents (including the 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, shall not exceed under any circumstances an amount equal to the sum of (i) the Parent Termination Fee, if any, due and owing to the Company pursuant to Section 8.06(b) and (ii) the amounts, if any, due and owing under Section 8.06(d) and Section 6.07(e).
Appears in 1 contract
Termination Fee. In the event that:
(i) In the event that (Ax) Parent or before obtaining the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) after the date of this Agreement and prior to such terminationRequisite Vote, 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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 (1) Section 8.1(b)(i7.2(a) or (2) Section 8.1(b)(iii7.2(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 8.1(c)(iii7.4(a), in each case, following any time at which Parent was entitled to terminate ; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(i7.3(a); then the Company shall (A) or in the case of clause (i) of this Section 8.1(c)(ii)7.5(b), within one substantially concurrently with the entry into a definitive agreement with respect to or consummation (1as the case may be) business day of the Acquisition Proposal referred to in sub-clause (i)(z) of this Section 7.5(b), (B) in the case of clause (ii) of this Section 7.5(b), no later than two Business Days after the date of such termination and (C) in the case of clause (iii) of this Section 7.5(b), substantially concurrently with such termination, pay the Termination Fee to American Securities LLC and P2 Capital Partners, LLC (or their respective designees) in such amounts as Parent notifies to the Company in writing (which amounts collectively shall pay to Parent (or a Parent Subsidiary designated by Parent) not, for the avoidance of doubt, exceed the Termination Fee.
(iv) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) For the avoidance of doubt, 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. (ia) In the event that that:
(i) (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 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) if there has been no Shareholders' Meeting), and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.02(a) or Section 8.02(c) and (C) within 12 months after the date termination 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 abandoned, then if, within nine (9) months of such terminationAgreement, the Company enters into a definitive agreement providing for, in connection with any Competing Transaction by a Third Party (in each case whether or recommends not the Competing Transaction was the same Competing Transaction referred to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one in Clause (1A) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely provided that for purposes of this Section 8.2(b)(i8.06(a), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “1520%” therein in the definition of “Competing Transaction” shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.); or
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by ParentA) 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 pursuant to Section 8.04; or (B) this Agreement is terminated by the Company pursuant to Section 8.1(b)(i8.03(c) or Section 8.1(b)(iii) or Parent pursuant to Section 8.1(c)(iii8.03(d), 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, then the Company shall pay pay, or cause to be paid, to one or more designees of Parent an amount equal to $20,000,000 (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
(iv”) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid by wire transfer of immediately available 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 an account designated in writing clause (ii)(A) above, (y) within two (2) Business Days following the entry by Parent the Company or a Subsidiary into the definitive agreements in connection with a Competing Transaction in the case of a termination referred to in clause (andi) above, if any amount becomes payable or (z) concurrently with the termination of this Agreement in the case of a termination pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingclause (ii)(B) above).
(v) For the avoidance of doubt, ; it being understood that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasion. For the avoidance of doubt, subject to Section 9.08, in the event Parent or its designee shall receive payment from the Company of the Company Termination Fee and expenses referred to in Section 8.06(c), the receipt of such Company Termination Fee and expenses under Section 8.06(c) 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 (as defined below) against any member of the Company Group (as defined below) for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether wilfully, intentionally, unintentionally or otherwise) or failure to perform hereunder (whether wilfully, intentionally, unintentionally or otherwise) or other failure of the Merger to be consummated (whether wilfully, intentionally, unintentionally or otherwise). Neither the Company nor any 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 and the expenses pursuant to Sections 8.06(a) and 8.06(c), and in no event shall any of Parent, Merger Sub or any 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 Parent designee to the extent provided in Sections 8.06(a) and 8.06(c).
(b) Parent will pay, or cause to be paid, to the Company an amount equal to $32,000,000 (the “Parent Termination Fee”) if this Agreement is terminated by the Company pursuant to Sections 8.03(a) or 8.03(b), such payment to be made as promptly as possible (but in any event within five (5) Business Days) following such termination.
(c) 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, without limitation, 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 1.00%. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder.
(d) 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 (iii) without the agreements contained in this Section 8.06, the parties hereto would not have entered into this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement but subject to Section 9.08, the Equity Commitment Letters, the Debt Commitment Letter or the Guaranties, 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 (whether wilfully, intentionally, unintentionally or otherwise) or otherwise fail to perform hereunder (whether wilfully, intentionally, unintentionally or otherwise), then the Company's right to terminate this Agreement and receive the Parent Termination Fee pursuant to Section 8.06(b) and expenses under Section 8.06(c) and the guarantee of such obligations pursuant to the Guaranties (subject to their terms, conditions and limitations), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any Group Company and all members of the Company Group (as defined below) against (A) Parent, Merger Sub, the Guarantors, (B) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of Parent, Merger Sub or any Guarantor, (C) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent, Merger Sub or any Guarantor or (D) any holders or future holders of any equity, stock, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any of the foregoing (clauses A – D, collectively, the "Parent Group"), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether wilfully, intentionally, unintentionally or otherwise) or failure to perform hereunder (whether wilfully, intentionally, unintentionally or otherwise) or other failure of the Merger to be consummated (whether wilfully, intentionally, unintentionally or otherwise). For the avoidance of doubt, neither Parent nor any 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 Letters, the Guaranties and the Debt Commitment Letter) other than the payment of the Parent Termination Fee pursuant to Section 8.06(b) and the expenses pursuant to Section 8.06(c), 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 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 Letters, the Guaranties and the Debt Commitment Letter), other than (without duplication) from Parent or Merger Sub to the extent provided in Sections 8.06(b) and 8.06(c), or the Guarantors to the extent provided in the Guaranties.
Appears in 1 contract
Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and (B) 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 abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its stockholders, a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the The Company shall pay to Parent Brookfield Asset Management Private Institutional Capital Adviser (or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(iPrivate Equity), the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i), except that all references to “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be “50%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) L.P. 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) In the event any amount is payable pursuant to the preceding clauses (i), (ii) or (iii), such amount shall be paid Fee by wire transfer of immediately available funds to an account designated in writing by Parent if:
(and, if any amount becomes payable i) this Agreement is terminated by Parent pursuant to Section 9.2(e), in which case, payment shall be made promptly, and in any event within two (2) Business Days after such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).termination;
(vii) For this Agreement is terminated by the avoidance of doubtCompany pursuant to Section 9.2(c)(ii), in no event which case, payment shall be made concurrently with such termination; provided, however, that if this Agreement is terminated by the Company be obligated pursuant to pay Section 9.2(c)(ii) to accept a Superior Proposal from an Excluded Party prior to the No-Shop Period Start Date, the Termination Fee shall equal 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 in any event within two (2) Business Days, after the date on more than one occasionwhich the Company consummates such transaction in respect of such Acquisition Proposal.
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Termination Fee. (i) In the event that (A) Parent or the Company terminates this Agreement is terminated by (1) Parent pursuant to Section 8.1(b)(i8.1(d) or Section 8.1(b)(iii(2) or Parent terminates this Agreement the Company pursuant to Section 8.1(c)(iii8.1(e) and or (BB)(1) after the date of this Agreement and prior to such terminationthe Acceptance Time, a Competing Proposal shall have been publicly disclosed or otherwise publicly communicated made directly to the stockholders of the Company Board 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’s stockholders Company pursuant to Section 8.1(c) and not publicly and unconditionally withdrawn (3) on or abandoned, then if, within nine prior to the twelve (912) months month anniversary of such termination, the Company enters into a definitive agreement providing for, or recommends with respect to its stockholders, a Competing Proposal or a Competing Proposal is the transactions contemplated thereby are actually consummated, then within one (1) business day after the occurrence of the applicable event described in this clause (2) the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a fee of Thirty Five Million One Hundred Fifty Thousand Dollars ($69,750,000 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 8.2(b)(i)8.2(b)(i)(B)(3) only, the term “Competing Proposal” shall have the meaning assigned to such term in Section 5.3(j)(i)9.5, except that all references the reference to “1520%” therein in the definition of “Competing Proposal” shall be deemed to be “50%” and all references a reference to “85%” therein shall be deemed to be “5040%”.
(ii) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), concurrently with such termination, the Company shall pay 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) In the event any amount is payable 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, if any amount becomes payable pursuant to any such clause, such amount shall not be or become due unless and until Parent has provided such wire transfer instructions for such designated account in writing).
(v) 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)