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otherwise publicly communicated to the Company Board or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9) months of such termination, the Company enters into a definitive agreement providing for, or recommends to its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. (ia) Except as otherwise set forth in this Section 9.3, all costs and expenses incurred in connection with this Agreement and the Transactions shall be paid by the party incurring such costs or expenses, whether or not the Transactions are consummated.
(b) In the event that that:
(i) an Acquisition Proposal shall have been made to the Company or shall have been made directly to the Stockholders generally or any Person shall have publicly announced an intention to make an Acquisition Proposal and thereafter, (A) Parent or this Agreement is terminated (I) by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i9.1(b)(i) or Section 8.1(b)(iii9.1(b)(iii) or (II) by Parent terminates this Agreement pursuant to Section 8.1(c)(iii9.1(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 Subsidiary enters into a definitive agreement providing forwith respect to, or recommends to its stockholders, or consummates a Competing transaction contemplated by, any Acquisition 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 replacing “15%” therein shall be deemed to be “50%” and all references to “85%” therein shall be deemed to be in the definition thereof with “50%”.) within 12 months of the date this 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 9.1(c)(i) or Section 9.1(c)(ii) (or by Parent or the Company pursuant to Section 8.1(b)(i9.1(b)(i) or Section 8.1(b)(iii9.1(b)(iii) or by Parent pursuant to Section 8.1(c)(iii), in each case, 9.1(c)(iii) following any time at which Parent was entitled to terminate this Agreement pursuant to Section 8.1(c)(i9.1(c)(i) or Section 8.1(c)(ii9.1(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 9.1(d)(i); then, in any such event under clause (i), (ii) or (iii) of this Section 9.3(b), such amount the Company shall pay to Parent, in cash at the time specified in the next sentence, a nonrefundable termination fee of $80 million (the “Termination Fee”). Any payment of the Termination Fee required to be made pursuant to (1) Section 9.3(b)(i) shall be paid made to Parent within two Business Days of the occurrence of the applicable event described in clause (B) of Section 9.3(b)(i); (2) Section 9.3(b)(ii) shall be made to Parent within two Business Days after termination of this Agreement by Parent as set forth in Section 9.3(b)(ii) and (3) Section 9.3(b)(iii) shall be made to Parent immediately prior to and as a condition to such termination of this Agreement by the Company as set forth in Section 9.3(b)(iii). All payments under this Section 9.3(b) shall be 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).
(v) Parent. For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee under this Section 9.3 shall be payable only once and not in duplication even though the Termination Fee may be payable under one or more provisions hereof.
(c) The Company acknowledges that the agreements contained in Section 9.3(b) are an integral part of the Transactions, and that, without those agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, if the Company fails to make payment of any amount payable under Section 9.3(b) within the applicable time period specified in Section 9.3(b) and Parent commences a Proceeding to collect such amount that results in a judgment against the Company, the Company shall reimburse Parent for its reasonable fees and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding and shall pay interest on more than one occasionthe amount of the payment at the prime rate as published in The Wall Street Journal in effect on the date the amount was payable pursuant to Section 9.3(b), with such interest to accrue beginning on the date such amount first was payable pursuant to Section 9.3(b) to the date of payment.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salix Pharmaceuticals LTD)
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. (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 If Parent terminates this Agreement pursuant to Section 8.1(c) or the event that Company terminates this Agreement pursuant to Section 8.1(e), the Company shall pay or cause to be paid to Parent a fee of $35 million in cash (the “Termination Fee”), in the case of a termination of this Agreement by the Company pursuant to Section 8.1(e), prior to or concurrently with such termination by the Company and in the case of a termination by this Agreement by Parent pursuant to Section 8.1(c), within two (2) Business Days after such termination.
(ii) If (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i8.1(d) or Section 8.1(b)(iii8.1(h) or if Parent terminates this Agreement pursuant to Section 8.1(c)(iii) and 8.1(f), (B) after the date of this Agreement and prior to such termination, a Company Competing Proposal shall have been publicly disclosed (or any Person shall have publicly announced an intention (whether or not conditional) to make a Company Competing Proposal, or a Company Competing Proposal shall have otherwise become publicly communicated known) and in each case such Company Competing Proposal (or such public announcement of an intention to make a Company Competing Proposal) has not been irrevocably withdrawn prior to the Company Board or the Company’s stockholders date of termination, and not publicly and unconditionally withdrawn or abandoned, then if, (C) within nine twelve (912) months of such termination, termination (1) the Company consummates any Company Competing Proposal or (2) the Company enters into a definitive agreement providing for, or recommends to its stockholders, a for any Company Competing Proposal or a Competing Proposal is consummatedProposal, 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 Parent the Termination Fee within two (2) Business Days after the earlier of entering into any definitive agreement providing for a Company Competing Proposal or a Parent Subsidiary designated by Parent) a fee consummation of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “any Company 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 (iiithis Section 8.2(b), 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.
(viv) For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one (1) occasion.
Appears in 2 contracts
Sources: Merger Agreement (Vascular Solutions Inc), Merger Agreement (Teleflex 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) or Section 8.1(b)(iii) by Parent or Parent terminates this Agreement Merger Sub pursuant to Section 8.1(c)(iii9.1(d)(ii), then the Company shall (i) pay the Termination Fee and (Bii) reimburse in its entirety the amount of the Initial Panthera Termination Fee and Parent’s payment to the Company of the other payments of the Panthera Termination Fee or portions thereof, such amounts to be paid as directed in writing by Parent, at or prior to the time of termination in the case of a termination pursuant to Section 9.1(c)(ii) or as promptly as possible (but in any event within two Business Days) following termination of this Agreement in the case of a termination pursuant to Section 9.1(d)(ii).
(b) In the event that this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the Company, Parent or Merger Sub pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(d)(i)) and, at any time after the date of this Agreement and prior to such terminationthe Company Stockholder Meeting (in the case of a termination pursuant to Section 9.1(b)(iii)) or prior to the breach giving rise to the right of termination (in the case of a termination pursuant to Section 9.1(d)(i)), a Competing bona fide, written Company Acquisition Proposal involving the purchase of not less than a majority of the outstanding voting securities of the Company shall have been publicly disclosed announced or otherwise publicly communicated made known and, in the case of termination pursuant to Section 9.1(b)(iii), not publicly withdrawn at least two Business Days prior to the Company Board Stockholder Meeting, and if within twelve months after such termination pursuant to Section 9.1(b)(iii) or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9Section 9.1(d)(i) months of such termination, the Company or any of its Subsidiaries enters into a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates, any Company Acquisition Proposal involving the purchase of not less than a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence majority of the applicable event described in this clause (2) outstanding voting securities of the Company shall pay to Parent (Company, then, on the date of such execution 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 terminationconsummation, the Company shall pay the Termination Fee as directed in writing by Parent, less the amount of any Parent Expenses previously paid to Parent (or a Parent Subsidiary designated by the Company pursuant to Section 9.2(c); provided, that the amount of any previous reimbursement of Parent’s payment of the Panthera Termination Fee pursuant to Section 9.2(c) shall not reduce the amount of the Termination FeeFee paid to Parent.
(iiic) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii) (or In the event that this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the Company, Parent or Merger Sub pursuant to a different section of Section 9.1 hereof at a time when this Agreement was terminable pursuant to Section 9.1(d)(i)) under circumstances in which the Termination Fee is not payable pursuant to this Section 9.2, then the Company shall (i) pay as promptly as possible (but in any event within two Business Days) following receipt of an invoice therefor all of Parent’s actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent and its Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement, which, in any event, shall not be greater than $15,000,000 (“Parent Expenses”) as directed in writing by Parent, and (ii) as promptly as possible, reimburse in its entirety the amount of the Initial Panthera Termination Fee and Parent’s payment to the Company of the other payments of the Panthera Termination Fee or portions thereof, such amounts to be paid as directed in writing by Parent at or prior to the time of termination; provided, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant to Section 8.1(b)(i9.2(b) shall not relieve the Company of its obligations to pay the Parent Expenses and reimburse Parent of its payment of the Panthera Termination Fee pursuant to this Section 9.2(c); and provided, further, that the payment by the Company of Parent Expenses and reimbursement of Parent’s payment of the Panthera Termination Fee pursuant to this Section 9.2(c) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 9.2(b) except to the extent indicated in Section 9.2(b).
(d) [Intentionally Omitted.]
(e) Any amount that becomes payable pursuant to Section 9.2(a), Section 9.2(b) or Section 8.1(b)(iii9.2(c) 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 party entitled to receive such payment.
(f) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 9.2 are an integral part of the transactions contemplated by this Agreement, that without these agreements the Company, Parent and Merger Sub would not have entered into this Agreement, and that any amounts payable pursuant to this Section 9.2 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent (and, if any amount becomes payable amounts due to Parent or Merger Sub pursuant to any such clausethis Section 9.2 or within the time periods specified in this Section 9.2, 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 costs and expenses (including reasonable legal fees and expenses) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on more than one occasionsuch unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
Appears in 2 contracts
Sources: Merger Agreement (Community Health Systems Inc), Merger Agreement (Triad Hospitals Inc)
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. (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 (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(i) 8.1(d)(ii), then, prior to or Section 8.1(b)(iii) or Parent terminates this Agreement pursuant concurrently with, and as a condition to Section 8.1(c)(iii) and (B) after the date termination of this Agreement and prior to such terminationAgreement, 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 or cause to be paid to Parent (or a Parent Subsidiary designated by Parentits designees) a fee of $69,750,000 an amount in cash equal to $113,000,000 (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 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) In the event that this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii) or Section 8.1(c)(iii), then the Company shall promptly, but in no event later than two (2) Business Days after the date of such termination, pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent.
(c) In the event that this Agreement is terminated:
(i) by Parent or the Company pursuant to Section 8.1(b)(i) or Section 8.1(c)(i) and an Acquisition Proposal was publicly proposed or announced by any Person after the date of this Agreement and prior to such termination; or
(ii) by Parent or the Company pursuant to Section 8.1(b)(iii) and an Acquisition Proposal was publicly proposed or announced by any Person after the date of this Agreement and prior to such termination; and
(iii) in any such event, (A) the Company enters into a definitive agreement with respect to any Acquisition Proposal within 12 months after such termination of this Agreement or (B) the Company consummates any Acquisition Proposal within 12 months after the termination of this Agreement, then, on the date of entering into such definitive agreement (in the case of Clause (A)), or consummating such Acquisition Proposal (in the case of Clause (B)), the Company shall pay or cause to be paid to Parent (or its designees) the Termination Fee by wire transfer of immediately available funds to an account designated in writing by Parent. For purposes of this Section 8.3(c), each reference to “20%” in the avoidance definition of doubt, “Acquisition Proposal” shall be deemed to be a reference to “50%.”
(d) The parties agree and understand that in no event shall the Company be obligated required to pay the Termination Fee on more than one occasion. Notwithstanding anything to the contrary in this Agreement, if Parent receives the Termination Fee from the Company pursuant to this Section 8.3, such payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby; provided, however, that the foregoing shall not relieve the Company from liability to Parent for any Willful and Material Breach of this Agreement by the Company. In addition, notwithstanding anything to the contrary in this Agreement, if Parent or Merger Sub receives any payments from the Company in respect of any breach of this Agreement, and thereafter Parent receives the Termination Fee under this Section 8.3, the amount of such Termination Fee shall be reduced by the aggregate amount of any payments made by the Company to Parent or Merger Sub in respect of any such breaches of this Agreement. The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated hereby, and that, without these agreements, the parties would not enter into this Agreement, and that any amounts payable pursuant to this Section 8.3 do not constitute a penalty. If the Company fails to pay when due any amount payable pursuant to Section 8.3, then (i) the Company will reimburse Parent for all reasonable costs and expenses (including reasonable legal fees and expenses) incurred in connection with any action taken to collect such payment and in connection with the enforcement by Parent of its rights under Section 8.3, and (ii) the Company will pay to Parent interest on the overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal) in effect on the date such overdue amount was originally required to be paid.
Appears in 2 contracts
Sources: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
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. (i) In the event that If (A) Parent terminates this Agreement pursuant to Section 9.1(h), (B) after the date hereof and prior to the date of such termination, an Acquisition Proposal is publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least three (3) Business Days prior to the Company Shareholders’ Meeting, and (C) within twelve (12) months of such termination, an Acquisition Proposal is consummated or a definitive agreement providing for an Acquisition Proposal is entered into, on or prior to the date that is the earlier of (x) the date such Acquisition Proposal is consummated and (y) the date of entry of such definitive agreement, the Company shall pay to Parent a fee of $59,500,000 in cash (the “Termination Fee”).
(ii) If (A) after the date hereof and prior to the termination of this Agreement, an Acquisition Proposal is made to the Company Board of Directors or the Company’s management or becomes publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least three (3) Business Days prior to such termination, (B) (1) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i9.1(d) or Section 8.1(b)(iii(2) or Parent terminates this Agreement pursuant to (x) Section 8.1(c)(iii9.1(c)(ii)(A) due to a breach of, or a failure to perform or comply with, one or more covenants or agreements under this Agreement following the making of such Acquisition Proposal or (y) Section 9.1(e)(ii) and (BC) 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 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 for 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 (2x) the Company shall pay to Parent date such Acquisition Proposal is consummated and (or a Parent Subsidiary designated by Parenty) a fee the date of $69,750,000 in cash (the “Termination Fee”). Solely for purposes entry 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 terminationdefinitive agreement, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to (A) Section 8.1(c)(i9.1(e)(i) or (B) Section 9.1(e)(ii) (in the case of this clause (B) if the Company has Willfully Breached Section 6.4 or Section 7.12(a) (other than the second sentence) or Section 8.1(c)(ii7.12(b) (or this Agreement is terminated by Parent or other than 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)(iisecond sentence)), within one two (12) business day Business Days after such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) If the Company terminates this Agreement pursuant to Section 9.1(g), substantially concurrently with or prior to (and as a condition to) such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(v) In the event any amount is payable by the Company pursuant to the preceding clauses (i), (ii) ), (iii), or (iiiiv), 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 promptly provide wire transfer instructions for such designated account in writingwriting to the Company upon request (and in any event with sufficient time to allow the Company to pay or cause to be paid to Parent any Termination Fee payable hereunder within the time periods required by this Section 9.2(b).
(v) ). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
(vi) Solely for purposes of Section 9.2(b)(i) and Section 9.2(b)(ii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.1, except that all references to “fifteen percent (15%)” and “eighty-five percent (85%)” therein shall be deemed to be references to “fifty percent (50%).”
Appears in 2 contracts
Sources: Merger Agreement (Dick's Sporting Goods, Inc.), Merger Agreement (Dick's Sporting Goods, Inc.)
Termination Fee. (ia) In the event that:
(i) this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(i) 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) 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. 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. (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 an Alternative Proposal shall have been publicly disclosed or otherwise publicly communicated made to the Company Board on or after the Company’s stockholders date hereof, or shall have been made directly to its shareholders generally on or after the date hereof, or any person shall have publicly announced on or after the date hereof an intention (whether or not conditional or withdrawn) to make an Alternative Proposal and not publicly thereafter, (B) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or 7.1(b)(iii), or by Parent pursuant to 7.1(d)(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, or recommends to its stockholdersconsummates, a Competing transaction contemplated by any Alternative Proposal or a Competing Proposal is consummated, then within one twelve (112) business day after the occurrence 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 (A) no Alternative Proposal is made to the Company terminates after the date hereof, or made directly to its shareholders generally after the date hereof, and no person shall have publicly announced, after the date hereof, an intention (whether or not conditional or withdrawn) to make an Alternative Proposal, (B) this Agreement is terminated by the Company or Parent pursuant to Section 8.1(d)(i7.1(b)(i) or 7.1(b)(iii), concurrently or by Parent pursuant to 7.1(d)(i) and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction within twelve (12) months of the date this Agreement is terminated with any person who made or whose Affiliate made an Alternative Proposal prior to the date hereof to the Company or directly to its shareholders or who publicly announced prior to the date hereof an intention to make an Alternative Proposal;
(iii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii); or
(iv) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or pursuant to Section 7.1(d)(iii); then in any such terminationevent under clause (i), (ii), (iii) or (iv) or of this Section 7.2(a), the Company shall pay to Parent a termination fee of $19,027,627 in cash (or a Parent Subsidiary designated by Parent) the “Company 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, 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) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c)(i), 7.1(c)(iii) or 7.1(c)(iv), then Parent shall pay to the Company a termination fee of $29,900,556 in cash (the “Parent Termination Fee”), it being understood that in no event shall the Parent be required to pay the Parent Termination Fee on more than one occasion.
Appears in 2 contracts
Sources: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)
Termination Fee. (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 known to the Company Board or shall have been made directly to its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to make a Takeover Proposal and thereafter, (B) this Agreement is terminated by the Company’s stockholders Company or Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii), 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 consummates a transaction contemplated by such Takeover Proposal or any other Takeover Proposal within twelve (12) months of the date this Agreement is terminated;
(ii) this Agreement is terminated by Parent pursuant to Section 7.1(c)(i) and the Company’s breach or failure triggering such termination shall have been a material and willful breach of, or recommends failure to comply with, the Company’s obligations under Section 5.1 or 5.3;
(iii) (A) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholdersshareholders generally or any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to make a Takeover Proposal and thereafter, (B) this Agreement is terminated by Parent pursuant to Section 7.1(c)(i) in circumstances not covered by Section 7.3(a)(ii), and the Company’s breach or failure triggering such termination shall have been willful, and (C) the Company enters into a definitive agreement with respect to, or consummates, a Competing transaction contemplated by such Takeover Proposal or a Competing any other Takeover Proposal is consummated, then within one twelve (112) business day after the occurrence months of the applicable date this Agreement is terminated;
(iv) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii); or
(v) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii); then in any such event described in this under clause (2i), (ii), (iii), (iv) or (v) of this Section 7.3(a), the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) a termination fee of thirty-one million dollars ($69,750,000 31,000,000) 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 Any payment required to be made pursuant to Sections 7.3(a)(i) or 7.3(a)(iii) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal (and in any event not later than two (2) business days after delivery to the Company terminates this Agreement of notice of demand for payment); any payment required to be made pursuant to Section 8.1(d)(i), concurrently with such termination, the Company 7.3(a)(iv) shall pay be made to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates promptly following termination of 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) (and in any event not later than two (2) business days after delivery to the Company of notice of demand for payment), in each case, following ; any time at which Parent was entitled payment required to terminate this Agreement be made pursuant to Section 8.1(c)(i7.3(a)(ii) or shall be made to Parent promptly following termination of this Agreement by Parent pursuant to Section 8.1(c)(ii)), within one 7.1(c)(i) in the circumstances described in Section 7.3(a)(ii) (1and in any event not later than two (2) business day days after such termination, delivery to 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 (iof notice of demand for payment), (ii) or (iii), . All such amount payments shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent (and, if Parent’ and any amount becomes payable payment required to be made pursuant to any such clauseSection 7.3(a)(v) shall be made to Parent 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 by the Company.
(vc) For In the avoidance of doubt, in no event shall that the Company be obligated shall fail to pay the Termination Fee required pursuant to this Section 7.3 when due, such fee shall accrue interest for the period commencing on more than the date such fee became past due, at a rate equal to the rate of interest publicly announced by PNC Bank in the City of Pittsburgh from time to time during such period, as such bank’s Prime Lending Rate plus 5%. In addition, if the Company shall fail to pay such fee when due, the Company shall also pay to Parent all of Parent’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee. The Company acknowledges that the Termination Fee and the other provisions of this Section 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent would not enter into this Agreement. The parties acknowledge and agree that in the event of a breach of this Agreement, the payment of the Termination Fee shall not constitute the exclusive remedy available to Parent, and that Parent shall be entitled to the remedies set forth in Section 8.8, including injunction and specific performance, and all additional and other remedies available at law or in equity to which Parent may be entitled; provided, however, that, in the event that the Termination Fee becomes payable and is paid by the Company pursuant to this Section 7.3, the Termination Fee shall be Parent’s, Merger Sub’s and Merger Sub 2’s sole and exclusive remedy under this Agreement.
(d) Notwithstanding anything to the contrary contained herein, the Company shall be obligated, subject to the terms of this Section 7.3, to pay only one occasionTermination Fee.
Appears in 2 contracts
Sources: Merger Agreement (Ladish Co Inc), Merger Agreement (Allegheny Technologies 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. (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 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. 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. (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) or Section 8.1(b)(iii) by Parent or Parent terminates this Agreement Merger Sub pursuant to Section 8.1(c)(iii9.1(d)(ii), then the Company shall pay the Termination Fee as directed in writing by Parent, at or prior to the time of termination in the case of a termination pursuant to Section 9.1(c)(ii) and or as promptly as possible (Bbut in any event within two Business Days) following termination of this Agreement in the case of a termination pursuant to Section 9.1(d)(ii).
(b) In the event that this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the Company, Parent or Merger Sub pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(d)(i)) and, at any time after the date of this Agreement and prior to such terminationthe Company Stockholder Meeting (in the case of a termination pursuant to Section 9.1(b)(iii)) or prior to the breach giving rise to the right of termination (in the case of a termination pursuant to Section 9.1(d)(i)), a Competing bona fide, written Company Acquisition Proposal involving the purchase of not less than a majority of the outstanding voting securities of the Company shall have been publicly disclosed announced or otherwise publicly communicated made known and, in the case of termination pursuant to Section 9.1(b)(iii), not publicly withdrawn at least two Business Days prior to the Company Board Stockholder Meeting, and if within twelve months after such termination pursuant to Section 9.1(b)(iii) or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9Section 9.1(d)(i) months of such termination, the Company or any of its Subsidiaries enters into a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates, any Company Acquisition Proposal involving the purchase of not less than a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence majority of the applicable event described in this clause (2) outstanding voting securities of the Company shall pay to Parent (Company, then, on the date of such execution 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 terminationconsummation, the Company shall pay the Termination Fee as directed in writing by Parent, less (unless the Termination Fee is the Go Shop Termination Fee) the amount of any Parent Expenses previously paid to Parent (or a Parent Subsidiary designated by Parent) the Termination FeeCompany pursuant to Section 9.2(c).
(iiic) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii) (or In the event that this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the Company, Parent or Merger Sub pursuant to a different section of Section 9.1 hereof at a time when this Agreement was terminable pursuant to Section 9.1(d)(i)) under circumstances in which the Termination Fee is not payable pursuant to this Section 9.2, then the Company shall pay as promptly as possible (but in any event within two Business Days) following receipt of an invoice therefor all of Parent’s actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent and its Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement, which, in any event, shall not be greater than $15,000,000 (“Parent Expenses”) as directed in writing by Parent; provided, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant to Section 8.1(b)(i9.2(b) or shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 8.1(b)(iii9.2(c); and provided, further, that the payment by the Company of Parent Expenses pursuant to this Section 9.2(c) or Parent shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 8.1(c)(iii9.2(b) except to the extent indicated in Section 9.2(b), 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.
(ivd) In the event any amount that this Agreement is payable terminated by the Company pursuant to the preceding clauses (i)) Section 9.1(b)(i) and at the time of such termination the conditions set forth in Section 8.1, Section 8.2(a) and Section 8.2(b) have been satisfied, (ii) Section 9.1(c)(i) and at the time of such termination there is no state of facts or circumstances that would reasonably be expected to cause the conditions set forth in Section 8.1, Section 8.2(a) and Section 8.2(b) not to be satisfied on or prior to the End Date, or (iii) Section 9.1(c)(iii), then Parent shall pay the Company the Termination Fee as directed in writing by the Company as promptly as possible (but in any event within two Business Days) following such termination by the Company. In addition, Parent shall promptly pay the amounts required by the indemnification and reimbursement provisions of Section 7.10(a), Section 7.11(g) and Section 7.13.
(e) Any amount that becomes payable pursuant to Section 9.2(a), Section 9.2(b), Section 9.2(c) or Section 9.2(d) shall be paid by wire transfer of immediately available funds to an account designated by the party entitled to receive such payment.
(f) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 9.2 are an integral part of the transactions contemplated by this Agreement, that without these agreements the Company, Parent and Merger Sub would not have entered into this Agreement, and that any amounts payable pursuant to this Section 9.2 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent (and, if any amount becomes payable amounts due to Parent or Merger Sub pursuant to any such clause, such amount shall not be this Section 9.2 within the time periods specified in this Section 9.2 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 fails to pay the Company any amounts due to the Company pursuant to this Section 9.2 within the time periods specified in this Section 9.2, the Company or Parent, as applicable, shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent or the Company, as applicable, in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding anything to the contrary in this Agreement, the Company’s right to receive payment of the Termination Fee on more than one occasionpursuant to the Guarantees shall be the sole and exclusive remedy of the Company and its Subsidiaries against Parent, Merger Sub, the Guarantors and any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents for the loss suffered as a result of the failure of the Merger to be consummated, and upon payment of such amount, none of Parent, Merger Sub, the Guarantors or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that Parent shall also be obligated with respect to the second sentence of this Section 9.2(f) and the indemnification and reimbursement obligations of Parent contained in Section 7.10(a), Section 7.11(g) and Section 7.13, and that Parent and Merger Sub shall also be obligated with respect to the provisions of Section 7.3(c) and the last sentence of Section 7.10(a), it being understood that no other Person (including the Guarantors) shall have any liability or obligation under or with respect to such Section 7.3(c) and such last sentence of Section 7.10(a).
Appears in 1 contract
Termination Fee. (ia) In the event that this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) or by Parent pursuant to Section 8.1(d)(i) or 8.1(d)(iii), then the Company shall pay the Termination Fee as directed in writing by Parent, at or prior to the time of termination in the case of a termination pursuant to Section 8.1(c)(ii) or as promptly as possible (Abut in any event within two Business Days) following termination of this Agreement in the case of a termination pursuant to Section 8.1(d)(i) or 8.1(d)(iii).
(b) In the event that this Agreement is terminated by Parent or the Company, pursuant to Section 8.1(b)(i) (or is terminated by the Company terminates pursuant to a different section of Section 8.1 at a time when this Agreement was terminable pursuant to Section 8.1(b)(i)) or pursuant to Section 8.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 8.1 at a time when this Agreement was terminable pursuant to Section 8.1(b)(iii)) or by Parent pursuant to Section 8.1(d)(ii) (or is terminated by the Company pursuant to a different section of Section 8.1 at a time when this Agreement was terminable pursuant to Section 8.1(d)(ii)) and, at any time after the date hereof and prior to the End Date (in the case of a termination pursuant to Section 8.1(b)(i)), after the date hereof and prior to the Company Meeting (in the case of a termination pursuant to Section 8.1(b)(iii)) or after the date hereof and prior to the breach giving rise to the right of termination (in the case of a termination pursuant to Section 8.1(d)(ii)), a bona fide, written Company Acquisition Proposal involving the purchase of not less than a majority of the outstanding voting securities of the Company shall have been (x) publicly announced or publicly made known, in the case of termination pursuant to Section 8.1(b)(iii) and not publicly withdrawn at least two Business Days prior to the Company Meeting or (y) made known to the Company or publicly announced or publicly made known, in the case of termination pursuant to Section 8.1(b)(i) or Section 8.1(d)(ii) and not withdrawn at least two Business Days prior to the End Date (in the case of a termination pursuant to Section 8.1(b)(i)) or the occurrence of the breach giving rise to the right of termination (in the case of a termination pursuant to Section 8.1(d)(ii)), and, if within twelve months after such termination pursuant to Section 8.1(b)(i), Section 8.1(b)(iii) or Parent terminates this Agreement pursuant to Section 8.1(c)(iii8.1(d)(ii) 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 any of such termination, the Company its Subsidiaries enters into a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates, such Company Acquisition Proposal involving the purchase of not less than a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence majority of the applicable event described in this clause (2) outstanding voting securities of the Company shall pay to Parent (whether or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (not the “Termination Fee”). Solely for purposes of this Section 8.2(b)(isame as that originally announced or consummated), then, on the term “Competing Proposal” shall have the meaning assigned to date of 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 terminationexecution or consummation, the Company shall pay the Termination Fee as directed in writing to Parent, less the amount of any Parent Expenses previously paid to Parent (or a Parent Subsidiary designated by Parent) the Termination FeeCompany.
(iiic) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii) (or In the event that this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b)(i8.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 8.1 at a time when this Agreement was terminable pursuant to Section 8.1(b)(iii)) or Section 8.1(b)(iii) or by Parent pursuant to Section 8.1(c)(iii8.1(d)(ii) (or is terminated by the Company pursuant to a different section of Section 8.1 hereof at a time when this Agreement was terminable pursuant to Section 8.1(d)(ii)) but only under circumstances in which the Termination Fee is not payable pursuant to Section 8.2(b), then the Company shall pay as promptly as possible (but in each caseany event within two Business Days) following receipt of an invoice therefor all of Parent’s actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses and fees and expenses of accountants, following any time at which financial advisors, consultants, lenders and other agents and advisors) actually incurred by Parent was entitled and its Affiliates on or prior to terminate the termination of this Agreement in connection with the transactions contemplated hereby and the related financing transactions (“Parent Expenses”) as directed by Parent in writing, which amount shall not be greater than $6.0 million; provided, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant to Section 8.2(b) shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 8.2(c); provided, further, that the payment by the Company of Parent Expenses pursuant to this Section 8.2(c) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 8.2(b) except to the extent indicated in Section 8.2(b); and provided, further, that if the Company has paid the Parent Expenses and is subsequently required to pay the Termination Fee, the Termination Fee shall be reduced by the amount of Parent Expenses previously paid by the Company.
(d) In the event that this Agreement is terminated by the Company pursuant to (i) Section 8.1(b)(i) (or is terminated by the Parent pursuant to a different section of Section 8.1 at a time when this Agreement was terminable pursuant to Section 8.1(b)(i)) and at the time of such termination the conditions set forth in Sections 7.1, 7.2(a) and 7.2(b) have been satisfied, or (ii) Section 8.1(c)(i) (or is terminated by Parent pursuant to a different section of Section 8.1 at a time when this Agreement was terminable pursuant to Section 8.1(c)(i)) and at the time of such termination there is no state of facts or Section 8.1(c)(ii))circumstances that would reasonably be expected to cause the conditions set forth in Sections 7.1, within one (17.2(a) business day after such terminationand 7.2(b) not to be satisfied on or prior to the End Date, then Parent shall pay the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination FeeFee as promptly as possible (but in any event within two Business Days) following such termination by the Company.
(ive) In the event any Any amount is that becomes payable pursuant to the preceding clauses (iSection 8.2(a), (ii8.2(b), 8.2(c) or (iii), such amount 8.2(d) shall be paid by wire transfer of immediately available funds to an account designated by the party entitled to receive such payment.
(f) Each of the Company and Parent acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated hereby, and that, without these agreements, neither the Company nor Parent would have entered into this Agreement, and that any amounts payable pursuant to this Section 8.2 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent (and, if any amount becomes payable amounts due to accounts designated by Parent pursuant to this Section 8.2 within the time periods specified in this Section 8.2 or Parent fails to pay the Company any amounts due to the accounts designated by the Company pursuant to this Section 8.2 within the time periods specified in this Section 8.2, the Company or Parent, as applicable, shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent or the Company, as applicable, in connection with any action, including the filing of any lawsuit, taken to collect payment of such clauseamounts, together with interest on such amount unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment.
(g) Notwithstanding anything to the contrary in this Agreement, the Company’s right to receive payment of a Termination Fee from Parent pursuant to this Section 8.2 or from the Guarantors pursuant to the Guarantees shall not be the sole and exclusive remedy available to the Company, its Affiliates and its Subsidiaries against Parent, the Guarantors and any of their respective former, current, or become due unless future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents (or any other Related Persons (as defined in Section 3 of the Guarantees)) with respect to this Agreement, the Plan of Arrangement or any agreement or document referred to in this Agreement and until the transactions contemplated hereby and thereby, including for any loss suffered as a result of the failure of the transactions contemplated hereby to be consummated, under any theory or for any reason, and upon payment of such amount, none of Parent, the Guarantors or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents (or any other Related Persons (as defined in Section 3 of the Guarantees)) shall have any further liability or obligation relating to or arising out of this Agreement, the Plan of Arrangement, any agreement or document referred to in this Agreement or the transactions contemplated hereby and thereby (except that Parent has provided such wire transfer instructions for such designated account in writingshall also be obligated with respect to the second sentence of Section 8.2(f)).
(vh) For Notwithstanding anything to the avoidance contrary in this Agreement, but except as provided in Section 9.12 with respect to equitable remedies, Parent’s right to receive payment of doubt, in no event shall a Termination Fee from the Company pursuant to this Section 8.2 shall be the sole and exclusive remedy available to Parent and its Affiliates for money damages against the Company, its Subsidiaries and any of their respective former, current, or future shareholders, directors, officers, Affiliates or agents with respect to this Agreement and the transactions contemplated hereby, including for any loss suffered as a result of the failure of the transactions contemplated hereby to be consummated, under any theory or for any reason, and upon payment of such amount, none of the Company, its Subsidiaries and any of their respective former, current, or future shareholders, directors, officers, Affiliates or agents 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 pay the Termination Fee on more than one occasionsecond sentence of Section 8.2(f)).
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. (i) In the event that If (A) Parent terminates this Agreement pursuant to Section 9.1(h), (B) after the date hereof and prior to the date of such termination, an Acquisition Proposal is publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least three (3) Business Days prior to the Company Shareholders’ Meeting, and (C) within twelve (12) months of such termination, an Acquisition Proposal is consummated or a definitive agreement providing for an Acquisition Proposal is entered into, on or prior to the date that is the earlier of (x) the date such Acquisition Proposal is consummated and (y) the date of entry of such definitive agreement, the Company shall pay to Parent a fee of $59,500,000 in cash (the “Termination Fee”).
(ii) If (A) after the date hereof and prior to the termination of this Agreement, an Acquisition Proposal is made to the Company Board of Directors or the Company’s management or becomes publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least three (3) Business Days prior to such termination, (B) (1) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(i9.1(d) or Section 8.1(b)(iii(2) or Parent terminates this Agreement pursuant to (x) Section 8.1(c)(iii9.1(c)(ii)(A) due to a breach of, or a failure to perform or comply with, one or more covenants or agreements under this Agreement following the making of such Acquisition Proposal or (y) Section 9.1(e)(ii) and (BC) 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 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 for 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 (2x) the Company shall pay to Parent date such Acquisition Proposal is consummated and (or a Parent Subsidiary designated by Parenty) a fee the date of $69,750,000 in cash (the “Termination Fee”). Solely for purposes entry 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 terminationdefinitive agreement, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to (A) Section 8.1(c)(i9.1(e)(i) or (B) Section 9.1(e)(ii) (in the case of this clause (B) if the Company has Willfully Breached Section 6.4 or Section 7.12(a) (other than the second sentence) or Section 8.1(c)(ii7.12(b) (or this Agreement is terminated by Parent or other than 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)(iisecond sentence)), within one two (12) business day Business Days after such termination, the Company shall pay to Parent (or a Parent Subsidiary designated by Parent) the Termination Fee.
(iv) If the Company terminates this Agreement pursuant to Section 9.1(g), substantially concurrently with or prior to (and as a condition to) such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(v) In the event any amount is payable by the Company pursuant to the preceding clauses (i), (ii) ), (iii), or (iiiiv), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by P▇▇▇▇▇. 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 promptly provide wire transfer instructions for such designated account in writingwriting to the Company upon request (and in any event with sufficient time to allow the Company to pay or cause to be paid to Parent any Termination Fee payable hereunder within the time periods required by this Section 9.2(b).
(v) ). For the avoidance of doubt, in no event shall the Company be obligated to pay the Termination Fee on more than one occasion.
(vi) Solely for purposes of Section 9.2(b)(i) and Section 9.2(b)(ii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.1, except that all references to “fifteen percent (15%)” and “eighty-five percent (85%)” therein shall be deemed to be references to “fifty percent (50%).”
Appears in 1 contract
Termination Fee. (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. (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. (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 (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 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 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 (A) Parent or this Agreement is terminated by the Company terminates this Agreement pursuant to Section 8.1(b)(i9.1(c)(ii) or Section 8.1(b)(iii) by Parent or Parent terminates this Agreement Merger Sub pursuant to Section 8.1(c)(iii9.1(d)(ii), then the Company shall pay the Termination Fee as directed in writing by Parent, at or prior to the time of termination in the case of a termination pursuant to Section 9.1(c)(ii) and or as promptly as possible (Bbut in any event within two Business Days) following termination of this Agreement in the case of a termination pursuant to Section 9.1(d)(ii).
(b) In the event that this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(d)(i)) and, at any time after the date of this Agreement and prior to such terminationthe Company Stockholder Meeting (in the case of a termination pursuant to Section 9.1(b)(iii)) or prior to the breach giving rise to the right of termination (in the case of a termination pursuant to Section 9.1(d)(i)), a Competing bona fide, written Company Acquisition Proposal involving the purchase of not less than a majority of the outstanding voting securities of the Company shall have been publicly disclosed announced or otherwise publicly communicated made known and, in the case of termination pursuant to Section 9.1(b)(iii), not publicly withdrawn at least two Business Days prior to the Company Board Stockholder Meeting, and, if within twelve months after such termination pursuant to Section 9.1(b)(iii) or the Company’s stockholders and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9Section 9.1(d)(i) months of such termination, the Company or any of its Subsidiaries enters into a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates, any Company Acquisition Proposal involving the purchase of not less than a Competing Proposal or a Competing Proposal is consummated, then within one (1) business day after the occurrence majority of the applicable event described in this clause (2) outstanding voting securities of the Company shall pay to Parent (whether or a Parent Subsidiary designated by Parent) a fee of $69,750,000 in cash (not the “Termination Fee”). Solely for purposes of this Section 8.2(b)(isame as that originally announced or consummated), then, on the term “Competing Proposal” shall have the meaning assigned to date of 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 terminationexecution or consummation, the Company shall pay the Termination Fee as directed in writing to Parent, less the amount of any Parent Expenses previously paid to Parent (or a Parent Subsidiary designated by Parent) the Termination FeeCompany.
(iiic) If Parent terminates this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii) (or In the event that this Agreement is terminated by Parent or Merger Sub, on the one hand, or the Company, on the other hand, pursuant to Section 9.1(b)(iii) (or is terminated by the Company pursuant to a different section of Section 9.1 at a time when this Agreement was terminable pursuant to Section 9.1(b)(iii)) or by Parent or Merger Sub pursuant to Section 9.1(d)(i) (or is terminated by the Company pursuant to a different section of Section 9.1 hereof at a time when this Agreement was terminable pursuant to Section 9.1(d)(i)) under circumstances in which the Termination Fee is not payable pursuant to this Section 9.2, then the Company shall pay as promptly as possible (but in any event within two Business Days) following receipt of an invoice therefor all of Parent's actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent and its Affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement ("Parent Expenses") as directed by Parent in writing, which amount shall not be greater than $50 million; provided, that the existence of circumstances which could require the Termination Fee to become subsequently payable by the Company pursuant to Section 8.1(b)(i9.2(b) or shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 8.1(b)(iii9.2(c); and provided, further that the payment by the Company of Parent Expenses pursuant to this Section 9.2(c) or Parent shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 8.1(c)(iii9.2(b) except to the extent indicated in Section 9.2(b), 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.
(ivd) In the event any amount that this Agreement is payable terminated by the Company pursuant to the preceding clauses (i)) Section 9.1(b)(i) and at the time of such termination the conditions set forth in Sections 8.1, 8.2(a) and 8.2(b) have been satisfied, (ii) Section 9.1(c)(i) and at the time of such termination there is no state of facts or circumstances that would reasonably be expected to cause the conditions set forth in Section 8.1, 8.2(a) and 8.2(b) not to be satisfied on or prior to the End Date, or (iii) Section 9.1(c)(iii), then Parent shall pay the Company the Termination Fee as promptly as possible (but in any event within two Business Days) following such termination by the Company.
(e) Any amount that becomes payable pursuant to Section 9.2(a), 9.2(b) or 9.2(c) or 9.2(d) shall be paid by wire transfer of immediately available funds to an account designated by the party entitled to receive such payment.
(f) Each of the Company, Parent and Merger Sub acknowledges that the agreements contained in this Section 9.2 are an integral part of the transactions contemplated by this Agreement, that without these agreements the Company, Parent and Merger Sub would not have entered into this Agreement, and that any amounts payable pursuant to this Section 9.2 do not constitute a penalty. If the Company fails to pay as directed in writing by Parent (and, if any amount becomes payable amounts due to Parent or Merger Sub pursuant to any such clause, such amount shall not be this Section 9.2 within the time periods specified in this Section 9.2 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 fails to pay the Company any amounts due to the Company pursuant to this Section 9.2 within the time periods specified in this Section 9.2, the Company or Parent, as applicable, shall pay the costs and expenses (including reasonable legal fees and expenses) incurred by Parent or the Company, as applicable, in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid until the date of actual payment. Notwithstanding anything to the contrary in this Agreement, the Company's right to receive payment of the Termination Fee on more than one occasionfrom Parent pursuant to this Section 9.2 or the guarantee thereof pursuant to the Guarantees shall be the sole and exclusive remedy of the Company and its Subsidiaries against Parent, Merger Sub, the Guarantors and any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents for the loss suffered as a result of the failure of the Merger to be consummated, and upon payment of such amount, none of Parent, Merger Sub, the Guarantors or any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that Parent shall also be obligated with respect to the second sentence of this Section 9.2(f) and the indemnification and reimbursement obligations of Parent contained in Sections 7.10(a) and 7.11, and that Parent and Merger Sub shall also be obligated with respect to the provisions of Sections 7.3(c) and the last sentence of Section 7.10(a), it being understood that no other Person (including the Guarantors) shall have any liability or obligation under or with respect to such Sections 7.3(c) and such last sentence of Section 7.10(a).
Appears in 1 contract
Sources: Merger Agreement (Hca Inc/Tn)
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. (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 (A) Parent or (x) this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i7.1(b)(i) (and at the time of such termination a vote to obtain the Company Stockholder Approval has not been held) or Section 8.1(b)(iii7.1(b)(iii), (y) 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 any Person or “group” (as defined in Section 13(d) of the Exchange Act), other than Parent and its Subsidiaries, Affiliates and Representatives (on behalf of Parent), shall have been publicly disclosed announced (and shall not have withdrawn) an intention (whether or not conditional or withdrawn) to make a Takeover Proposal or such Takeover Proposal has otherwise become publicly communicated to the Company Board or the Company’s stockholders known and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9z) months of such termination, the Company enters into a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates, a Competing transaction contemplated by any Takeover Proposal within twelve (12) months of the date this Agreement is terminated, (B) this Agreement is terminated by Parent pursuant to Section 7.1(c)(iii) or a Competing Proposal (C) this Agreement is consummatedterminated by the Company pursuant to Section 7.1(d)(ii), then within one (1) business day after the occurrence of the applicable in any such event described in this under clause (2A), (B) the Company shall pay to Parent or (or a Parent Subsidiary designated by ParentC) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i7.3(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 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 a termination fee of $15,000,000 in cash (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
”). Any payment required to be made pursuant to clause (iiiA) If of this Section 7.3(a) shall be made to Parent terminates promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal; any payment required to be made pursuant to clause (B) of this Section 7.3(a) shall be made to Parent promptly following (and in any event not later than two business days after) termination of this Agreement by Parent pursuant to such section; and any payment required to be made pursuant to clause (C) of this Section 8.1(c)(i7.3(a) shall be made to Parent prior to or Section 8.1(c)(iisimultaneously with (and as a condition to the effectiveness of) (or termination of 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)(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 . All 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 payments shall be paid made by wire transfer of immediately available funds to an account to be designated in writing by Parent.
(b) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(i) or 7.1(d)(iii),or by Parent or the Company pursuant to Section 7.1(b)(i) at a time when the Agreement could have been terminated by the Company pursuant to Section 7.1(d)(iii) then Parent shall pay to the Company a termination fee of $20,000,000 in cash (andthe “Parent Termination Fee”), if any amount it being understood that in no event shall Parent to be required to pay the Parent Termination Fee on more than one (1) occasion. If the Parent Termination Fee becomes payable pursuant to any such clausethis Section 7.3(b), such amount it shall not be paid no later than three (3) Business Days after the termination of this Agreement pursuant to Section 7.1(d)(i) or become due unless and until Parent has provided such wire transfer instructions for such designated account in writingSection 7.1(d)(iii).
(vc) For In the avoidance event that the Company shall fail to pay the Termination Fee when due, or Parent shall fail to pay the Parent Termination Fee when due, as the case may be, such payment amount shall accrue interest for the period commencing on the date such payment amount became past due, at a rate equal to the rate of doubtinterest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank’s Prime Lending Rate. In addition, if either party shall fail to pay such payment amount when due, such party shall also pay to such other party all of such other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such payment amount. Each of the Company and Parent acknowledges that the payment amounts and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, neither the Company nor Parent would enter into this Agreement.
(d) If this agreement is terminated by the Company pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii), the Company’s right to receive payment of the Parent Termination Fee from Parent in respect thereof shall be the sole and exclusive remedy of the Company and its Affiliates against Parent or Merger Sub or any of their respective former, current or future stockholders, directors, officers, employees, representatives or Affiliates (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise (“Company Damages”) and upon payment of such amount none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions (except that Parent shall also be obligated with respect to Section 7.3(c)).
(e) Notwithstanding anything herein to the contrary, (i) the maximum aggregate liability of Parent and Merger Sub for all Company Damages (inclusive of the Parent Termination Fee), shall be limited to an amount equal to the Parent Termination Fee plus any amounts that become due under Section 7.3(c) (the “Parent Liability Limitation”), and in no event shall the Company be obligated to pay or any of its Affiliates seek (x) any Company Damage in excess of such amount, (y) any Company Damages in any amount if the Parent Termination Fee has been paid or (z) any other recovery, judgment, or damages of any kind, including equitable relief or consequential, indirect, or punitive damages, against Parent and Merger Sub or any other Parent Related Parties in connection with this Agreement or the Transactions and (ii) 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 Related Parties, through Parent or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on more than one occasionbehalf of Parent against or any other Parent Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise, except for its rights to recover the Parent Termination Fee or Company Damages subject to the Parent Liability Limitation, from Parent (but not any other Parent Related Party), in each case, subject to the Parent Liability Limitation and the other limitations described therein and herein. Subject to the limitations contained herein, recourse against Parent hereunder shall be the sole and exclusive remedy of the Company and its Affiliates against any other Parent Related Party in respect of any liabilities or obligations arising under, or in connection with, this Agreement or the Transactions.
Appears in 1 contract
Termination Fee. (ia) In the event that (Ai) 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 either 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)(i8.1(f)(i) and, in either case, at the time of such termination there shall exist or be proposed a Competing Transaction in respect of Metrocall which is consummated or with respect to which Metrocall enters into a definitive agreement within 12 months thereafter, (ii) Arch shall terminate this Agreement pursuant to Section 8.1(c)(ii)8.1(d), within one or (1iii) business day after such terminationMetrocall shall terminate this Agreement pursuant to Section 8.1(i), the Company then Metrocall shall pay to Parent Arch $12 million, promptly after demand for payment is made to Metrocall or, in the case of subpart (i) hereof, after the execution and delivery of such agreement or a Parent Subsidiary designated by Parent) the Termination Feeconsummation of such Competing Transaction.
(ivb) In the event any amount is payable that (i) either Company shall terminate this Agreement pursuant to Section 8.1(f)(ii) and, in either case, at the preceding clauses time of such termination there shall exist or be proposed a Competing Transaction in respect of Arch which is consummated or with respect to which Arch enters into a definitive agreement within 12 months thereafter, (ii) Metrocall shall terminate this Agreement pursuant to Section 8.1(e), or (iii) Arch shall terminate this Agreement pursuant to Section 8.1(j), then Arch shall pay to Metrocall $12 million, promptly after demand for payment is made to Arch or, in the case of subpart (i)) hereof, after the execution and delivery of such agreement or the consummation of such Competing Transaction.
(c) Any payment required to be made pursuant to this Section 8.3 shall be made not later than two Business Days after (i) delivery to the paying party of notice of demand for payment, (ii) the execution of a definitive agreement relating to a Competing Transaction or (iii) the consummation of such Competing Transaction (in the case of clause (ii) or (iii), the paying Company shall promptly notify the other Company of such amount event and the other Company shall designate an account for such payment in writing), as required by this Section 8.3, and shall be paid made by wire transfer of immediately available funds to an account designated by the other Company in writing by Parent the notice of demand for payment, or in the case of clause (andii) or (iii), if other written instruction. In the event both Arch and Metrocall would otherwise be entitled to payments under Section 8.3 (a) and (b) respectively, neither Company shall be required to make any amount becomes payable payment under this Section 8.3. In no event shall either Company be entitled to collect amounts 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)this Section 8.3 relating to more than one specified event.
(vd) For In the avoidance event fees are payable under this Section 8.3, such fees set forth in this Section 8.3 shall constitute the sole and exclusive remedy for any loss, liability, damage or claim arising out of doubtor in connection with any nonperformance of a covenant, breach, failure of a condition precedent or termination of this Agreement.
(e) Each of the parties acknowledge that the agreements contained in Section 8.3 are an integral part of the Transactions, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if either of the parties fails to pay in a timely manner the amounts due pursuant to Section 8.3 and, in no event order to obtain such payment, the other party makes a claim that results in a judgment against the first party for the amounts set forth in this Section 8.3, the first party shall the Company be obligated to pay the Termination Fee other party its costs and expenses (including attorney's fees and expenses) in connection with such suit, together with interest on more than one occasionthe applicable amounts at the prime rate as set forth in The Wall Street Journal (Northeastern Edition), in effect on the date such payment was originally required to be made.
Appears in 1 contract
Sources: Merger Agreement (Arch Wireless 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 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) 6.1(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, within one twelve (112) business day after months of the date this Agreement is terminated, enters into a definitive agreement with respect to, any Alternative Acquisition Proposal or an Alternative Acquisition Proposal is consummated (provided, that for purposes of clause (C), the references to “15%” in the definition of Alternative Acquisition Proposal shall be deemed to be references to “50%”), then within two Business Days of the earlier of entering into such definitive agreement or consummation of such Alternative Acquisition Proposal, the Company shall pay to Parent by wire transfer of immediately available funds 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 of immediately available funds; 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, funds; it being understood that in no event shall the Company be obligated required to pay the Company Termination Fee on more than one occasion.
Appears in 1 contract
Sources: Merger Agreement (Zayo Group LLC)
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. (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. (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. 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. (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. (1) Despite any other provision in this Agreement relating to the payment of fees and expenses, including the payment of brokerage fees, if a Termination Fee Event occurs, the Company shall pay the Purchaser the Termination Fee (less any Taxes required to be withheld by Law) in accordance with Section 8.2(3).
(2) For the purposes of this Agreement, “Termination Fee” means $4,139,760 and “Termination Fee Event” means the termination of this Agreement:
(a) by the Purchaser, pursuant to Section 7.2(1)(d)(ii) (Termination for Board actions) or Section 7.2(1)(d)(iii) (Termination for Breach of Non-Solicitation Covenants);
(b) by the Purchaser, pursuant to Section 7.2(1)(d)(i) (Termination for breach), if such breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company under this Agreement is wilful;
(c) by the Company, pursuant to Section 7.2(1)(c)(ii) (Termination for Superior Proposal or Change in Recommendation as a result of Superior Proposal);
(d) by the Company or the Purchaser pursuant to Section 7.2(1)(b)(i) (Termination for failure to obtain Required Approval) or Section 7.2(1)(b)(iii) (Termination for expiry of Outside Date), or by the Purchaser pursuant to Section 7.2(1)(d)(i) (Termination for breach) 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 an Acquisition Proposal is made or publicly announced by any Person other than the Purchaser or any of its affiliates or any Person (other than the Purchaser or any of its affiliates) shall have been publicly disclosed or otherwise publicly communicated announced an intention 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%”.do so; and
(ii) If within one hundred and eighty (180) days following the date of such termination: (i) an Acquisition Proposal is consummated; or (ii) the Company terminates this Agreement pursuant to Section 8.1(d)(i)or one or more of its Subsidiaries, concurrently with such terminationdirectly or indirectly, the Company shall pay to Parent (in one or more transactions, enters into a Parent Subsidiary designated by Parent) the Termination Feecontract in respect of an Acquisition Proposal.
(iii3) 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 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 the Company to the Purchaser as follows, by wire transfer of immediately available funds (less any Taxes required to an account designated in writing be withheld by Parent (andLaw), if any amount becomes payable pursuant a Termination Fee Event occurs due to:
(a) a termination of this Agreement described in Section 8.2(2)(a) or Section 8.2(2)(b) (Termination by Purchaser), within two (2) Business Days of the occurrence of such Termination Fee Event;
(b) a termination of this Agreement described in Section 8.2(2)(c) (Termination by Company), prior to any or concurrent with the occurrence of such clause, such amount shall not be Termination Fee Event;
(c) a termination of this Agreement described in Section 8.2(2)(d) (Termination by Company or become due unless and until Parent has provided such wire transfer instructions for such designated account Purchaser) on or prior to the earlier of the consummation of the Acquisition Proposal or the entering into of the contract referred to in writingSection 8.2(2)(d).
(v4) For The Company acknowledges that the avoidance agreements contained in this Section 8.2 are an integral part of doubtthe transactions contemplated by this Agreement, and that without these agreements the Purchaser would not enter into this Agreement, and that the amounts set out in no this Section 8.2 represent liquidated damages which are a genuine pre-estimate of the damages, including opportunity costs, which the Purchaser will suffer or incur as a result of the event shall giving rise to such damages and resultant termination of this Agreement, and is not a penalty. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive.
(5) The Company agrees that the Company be obligated to pay payment of the Termination Fee on more pursuant to this Section 8.2 is in addition to any damages or other payment or remedy to which the Purchaser may be entitled under Section 8.6 (Injunctive Relief). For greater certainty, the Parties agree that the right to receive payment of the amount determined pursuant to Section 8.2(2), in the manner provided therein, is, where such amount has been paid in full, the sole monetary remedy of the Purchaser in respect of the event giving rise to such payment, other than one occasionthe right to injunctive relief in accordance with Section 8.6 (Injunctive Relief) hereof to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or the Confidentiality Agreement or otherwise to obtain specific performance of any of such acts, covenants or agreements, without the necessity of posting a bond or security in connection therewith.
Appears in 1 contract
Sources: Arrangement Agreement
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. (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 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 (A) Parent or (x) this Agreement is terminated by the Company terminates this Agreement or Parent pursuant to Section 8.1(b)(i7.1(b)(i) (and at the time of such termination a vote to obtain the Company Stockholder Approval has not been held) or Section 8.1(b)(iii7.1(b)(iii), (y) 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 any Person or “group” (as defined in Section 13(d) of the Exchange Act), other than Parent and its Subsidiaries, Affiliates and Representatives (on behalf of Parent), shall have been publicly disclosed announced (and shall not have withdrawn) an intention (whether or not conditional or withdrawn) to make a Takeover Proposal or such Takeover Proposal has otherwise become publicly communicated to the Company Board or the Company’s stockholders known and not publicly and unconditionally withdrawn or abandoned, then if, within nine (9z) months of such termination, the Company enters into a definitive agreement providing forwith respect to, or recommends to its stockholdersconsummates, a Competing transaction contemplated by any Takeover Proposal within twelve (12) months of the date this Agreement is terminated, (B) this Agreement is terminated by Parent pursuant to
Section 7.1 (c)(iii) or a Competing Proposal (C) this Agreement is consummatedterminated by the Company pursuant to Section 7.1(d)(ii), then within one (1) business day after the occurrence of the applicable in any such event described in this under clause (2A), (B) the Company shall pay to Parent or (or a Parent Subsidiary designated by ParentC) a fee of $69,750,000 in cash (the “Termination Fee”). Solely for purposes of this Section 8.2(b)(i7.3(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 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 a termination fee of $15,000,000 in cash (or a Parent Subsidiary designated by Parent) the “Company Termination Fee.
”). Any payment required to be made pursuant to clause (iiiA) If of this Section 7.3(a) shall be made to Parent terminates promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal; any payment required to be made pursuant to clause (B) of this Section 7.3(a) shall be made to Parent promptly following (and in any event not later than two business days after) termination of this Agreement by Parent pursuant to such section; and any payment required to be made pursuant to clause (C) of this Section 8.1(c)(i7.3(a) shall be made to Parent prior to or Section 8.1(c)(iisimultaneously with (and as a condition to the effectiveness of) (or termination of 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)(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 . All 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 payments 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) For In the avoidance event that this Agreement is terminated by the Company pursuant to Section 7.1(d)(i) or 7.1(d)(iii),or by Parent or the Company pursuant to Section 7.1(b)(i) at a time when the Agreement could have been terminated by the Company pursuant to Section 7.1(d)(iii) then Parent shall pay to the Company a termination fee of doubt$20,000,000 in cash (the “Parent Termination Fee”), it being understood that in no event shall the Company Parent to be obligated required to pay the Parent Termination Fee on more than one (1) occasion. If the Parent Termination Fee becomes payable pursuant to this Section 7.3(b), it shall be paid no later than three (3) Business Days after the termination of this Agreement pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii).
(c) In the event that the Company shall fail to pay the Termination Fee when due, or Parent shall fail to pay the Parent Termination Fee when due, as the case may be, such payment amount shall accrue interest for the period commencing on the date such payment amount became past due, at a rate equal to the rate of interest publicly announced by Citibank, in the City of New York from time to time during such period, as such bank’s Prime Lending Rate. In addition, if either party shall fail to pay such payment amount when due, such party shall also pay to such other party all of such other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such payment amount. Each of the Company and Parent acknowledges that the payment amounts and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, neither the Company nor Parent would enter into this Agreement.
(d) If this agreement is terminated by the Company pursuant to Section 7.1(d)(i) or Section 7.1(d)(iii), the Company’s right to receive payment of the Parent Termination Fee from Parent in respect thereof shall be the sole and exclusive remedy of the Company and its Affiliates against Parent or Merger Sub or any of their respective former, current or future stockholders, directors, officers, employees, representatives or Affiliates (collectively, the “Parent Related Parties”) for any loss suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise (“Company Damages”) and upon payment of such amount none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions (except that Parent shall also be obligated with respect to Section 7.3(c)).
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