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This excerpt taken from the CVS 8-K filed Aug 13, 2008. Termination
Fee”), in the case of termination by the Company, simultaneously with
such termination and, in the case of termination by Parent, within one Business
Day after such termination.
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(ii) If (A)
this Agreement is terminated by Parent or the Company pursuant to Section
11.01(b)(i), (B) prior to such termination, a bona
fide Acquisition Proposal shall have been publicly announced or otherwise
been communicated to the Board of Directors or the Company’s stockholders
and (C) within 12 months following the date of such termination, the
Company shall have entered into a definitive agreement with respect to or
recommended to its stockholders an Acquisition Proposal or an Acquisition
Proposal shall have been consummated (provided
that, in each case, 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.
For the
avoidance of doubt, in no event shall the Company be required to pay more than
one Termination Fee.
(c) Reimbursement. If
this Merger Agreement shall have been terminated pursuant to Section 11.01(b)(i)
due to a failure of the Minimum Condition to be satisfied, the Company shall
reimburse Parent and its Affiliates (by wire transfer of immediately available
funds), no later than two Business Days after submission of reasonable
documentation thereof, for 100% of their reasonable out-of-pocket fees and
expenses (including reasonable fees and expenses of their counsel) up to $10
million actually incurred by any of them in connection with this Agreement and
the transactions contemplated hereby (including, for the sake of clarity, those
incurred in connection with the negotiation and consideration thereof and the
due diligence investigation of the Company and its Subsidiaries).
(d) Sole
Remedy. The Company acknowledges that the agreements contained
in this Section 12.04 are an integral part of the transactions contemplated by
this Agreement and that, without these agreements, Parent and Merger Subsidiary
would not enter into this Agreement. Notwithstanding anything to the
contrary in this Agreement, each of Parent and Merger Subsidiary acknowledges
and agrees on behalf of itself and its Affiliates that in the event that the
Termination Fee becomes payable and is paid by the Company pursuant to this
Section 12.04, the right to receive the Termination Fee shall constitute each of
Parent’s and Merger Subsidiary’s and each of their Affiliates and
Representatives sole and exclusive remedy under this Agreement.
Section
12.05. Disclosure
Schedule References. The parties hereto agree that any
reference in a particular Section of either the Company Disclosure Schedule or
the Parent Disclosure Schedule shall only be deemed to be an exception to (or,
as applicable, a disclosure for purposes of) (a) the
63
representations
and warranties (or covenants, as applicable) of the relevant party that are
contained in the corresponding Section of this Agreement and (b) any other
representations and warranties of such party that is contained in this
Agreement, but only if the relevance of that reference as an exception to (or a
disclosure for purposes of) such representations and warranties would be readily
apparent to a reasonable person who has read that reference and such
representations and warranties, without any independent knowledge on the part of
the reader regarding the matter(s) so disclosed. Disclosure of any
fact or item in any Schedule to the Agreement (i) shall not be considered an
admission by the disclosing party that such item or fact (or any non-disclosed
item or information of comparable or greater significance) represents a material
exception or fact, event or circumstance or that such item has had or is
reasonably expected to result in, as applicable, a Parent Material Adverse
Effect or a Company Material Adverse Effect, or that such item or fact will in
fact exceed any applicable threshold limitation set forth in the Agreement and
(ii) shall not be construed as an admission by the disclosing party of any
non-compliance with, or violation of, any third party rights (including but not
limited to any intellectual property rights) or any law, regulation, order,
judgment or decree of any Governmental Authority, such disclosures having been
made solely for the purposes of creating exceptions to the representations made
herein or of disclosing any information required to be disclosed under the
Agreement.
Section
12.06. Binding
Effect; Benefit; Assignment. (a) The provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Except as
provided in Section 8.03 only, no provision of this Agreement is intended to
confer any rights, benefits, remedies, obligations or liabilities hereunder upon
any Person other than the parties hereto and their respective successors and
assigns.
(b) No
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the prior written consent of each other
party hereto, except that Parent or Merger Subsidiary may transfer or assign its
rights and obligations under this Agreement, in whole or from time to time in
part, to one or more of its Affiliates or designees (which Affiliates and/or
designees may pay all or any portion of the consideration payable by Parent
and/or Merger Subsidiary pursuant to this Agreement) at any time; provided
that such transfer or assignment shall not (i) relieve Parent or Merger
Subsidiary of its obligations under this Agreement or prejudice the rights of
stockholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer or Shares converted into cash pursuant to the
Merger or (ii) be reasonably likely to delay consummation of the
transactions contemplated hereby.
Section
12.07. Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware, without regard to
64
the
conflicts of law rules of such state, except to the extent that Maryland Law
mandatorily applies to the matters arising under or in connection with this
Agreement.
Section
12.08. Jurisdiction.
(a) The parties hereto agree that any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby or the negotiation,
interpretation, validity or performance of this Agreement, or the transactions
contemplated hereby (including the Offer and the Merger) and the rights and
obligations arising hereunder, or for recognition and enforcement of any
judgment in respect of this Agreement and the rights and obligations arising
hereunder whether brought by any party or any of its Affiliates or any of their
respective successors or assigns or against any party or its Affiliates or any
of their respective successors or assigns, shall be brought and determined
exclusively in the Delaware Court of Chancery, or in the event (but only in the
event) that such court does not have jurisdiction over such action or
proceeding, in the United States District Court for the District of Delaware, or
in the event (but only in the event) that neither such court has jurisdiction
over such action or proceeding, the Delaware Superior Court, and each of the
parties hereby irrevocably consents to the exclusive jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees
that service of process on such party as provided in Section 12.01 shall be
deemed effective service of process on such party.
(b) EACH
OF PARENT, MERGER SUB AND THE COMPANY HEREBY IRREVOCABLY DESIGNATES THE
CORPORATION TRUST COMPANY (IN SUCH CAPACITY, THE “ |
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