Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. (a) If this Agreement is terminated pursuant to Section 9.1(b), then, in lieu of all other Claims and remedies that might otherwise be available with respect thereto, including elsewhere hereunder and notwithstanding any other provision of this Agreement: (i) if Buyer has breached its obligation to pay the Purchase Price pursuant to Sections 2.2 and 2.5 or its obligations under Section 6.1(a), 6.1(c) or 6.28 and, in the case of Section 6.28, such breach has not been cured within one Business Day, then Buyer shall pay to Seller, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; (ii) if Seller has breached its obligations to sell the Company Interests to Buyer pursuant to Sections 2.1 and 2.4 or its obligations under Section 6.1(a) or 6.1(c), then Seller shall pay Buyer, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; or (iii) if either Buyer or Seller has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Sections 9.3(a)(i) and 9.3(a)(ii)), then the breaching Party shall pay to the other, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, the terminating Party’s actual and reasonable out-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses incurred in connection with this Agreement, subject to a maximum of $4,000,000. (b) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of a breach by Buyer or Seller, as the case may be, the actual damages to be incurred by any Party can reasonably be expected to approximate the amount of liquidated damages called for herein and because the actual amount of such damages would be difficult if not impossible to measure accurately.

Break-Up Fee. (a) If If, upon satisfaction or waiver of all conditions to the obligations of the Sellers to effect the Closing contained in this Agreement is terminated pursuant to Section 9.1(b(other than any such conditions which, by their nature, can only be satisfied at Closing), thenPurchaser is ready and willing to close and the Closing shall not occur solely due to a bad faith and intentional breach by any Seller of any representation, in lieu of all other Claims and remedies that might otherwise be available with respect thereto, including elsewhere hereunder and notwithstanding any other provision of this Agreement: (i) if Buyer has breached its obligation to pay the Purchase Price pursuant to Sections 2.2 and 2.5 warranty or its obligations under Section 6.1(a), 6.1(c) or 6.28 and, in the case of Section 6.28, such breach has not been cured within one Business Daycovenant contained herein, then Buyer Sellers shall jointly and severally pay Purchaser an amount in cash equal to Seller$1,500,000 (one million five hundred thousand dollars) as liquidated damages and not a penalty, by wire transfer of immediately available funds within three which payment shall be due and payable five Business Days following the earliest possible date on which the Closing would have occurred in the absence of termination, as liquidated damages, 10% of the Base Purchase Price; (ii) if Seller has breached its obligations to sell the Company Interests to Buyer pursuant to Sections 2.1 such Seller's bad faith and 2.4 or its obligations under Section 6.1(a) or 6.1(c), then Seller shall pay Buyer, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; or (iii) if either Buyer or Seller has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Sections 9.3(a)(i) and 9.3(a)(ii)), then the breaching Party shall pay to the other, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, the terminating Party’s actual and reasonable out-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses incurred in connection with this Agreement, subject to a maximum of $4,000,000intentional breach. (b) The provision If (i) Sellers shall, as a result of any Seller's bad faith and intentional breach, be obligated to make the payment referenced in Section 4.5(a) and (ii) Sellers shall have entered into a definitive agreement for payment the acquisition (by merger, stock purchase or otherwise) of the Companies or all or any material portion of their collective assets (including by merger or purchase of the stock or equity of the Companies) within nine months of the termination of this Agreement, then Sellers shall jointly and severally pay Purchaser $5,500,000 (five million five hundred thousand dollars) in addition to any amounts payable pursuant to Section 4.5(a), in cash as liquidated damages and not a penalty which payment shall be due and payable five Business Days following consummation the acquisition contemplated by such agreement. (c) The parties hereto acknowledge that because of the unique circumstances relating to this Agreement and the Acquisition it would be difficult or impossible to determine with precision the amount of damages that would or might be incurred by Purchaser as a consequence of Sellers' breach of its obligations under this Agreement, and that Purchaser shall be damaged as a result of such breach, and that the liquidated damages payments set forth in this Section 9.3 has been included because, in 4.5 represents a reasonable estimate of fair compensation for the event loss of a breach by Buyer or Seller, as the case business opportunity and other damages that may be, the actual damages be reasonably anticipated to be incurred suffered by any Party can reasonably be expected to approximate the amount of liquidated damages called for herein and because the actual amount Purchaser as a consequence of such breach and such payment is in addition to any other remedies (but not other money damages would remedies) to which Purchaser may be difficult if not impossible to measure accuratelyentitled under this Agreement.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 9.1(b6.5(e) or Section 6.5(f), then, in lieu of all other Claims and remedies that might otherwise be available with respect thereto, including elsewhere hereunder and notwithstanding any other provision of this Agreement: or (iii) if by Buyer has breached its obligation to pay the Purchase Price pursuant to Sections 2.2 and 2.5 or its obligations under Section 6.1(a6.5(g), 6.1(c) or 6.28 and, in the case of Section 6.28, such breach has not been cured within one Business Day, then Buyer shall pay to Seller, Seller the Break-Up Fee by wire transfer of immediately available funds to an account designated by Seller, within three (3) Business Days following of the date of termination, as liquidated damages, 10% termination of this Agreement (if so terminated by Seller) or prior to or contemporaneously with the Base Purchase Price; termination of this Agreement (iiif so terminated by Buyer) if provided the termination shall not be effective unless Seller has breached its obligations to sell received the Company Interests to Buyer pursuant to Sections 2.1 and 2.4 or its obligations under Section 6.1(a) or 6.1(c), then Seller shall pay Buyer, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; or (iii) if either Buyer or Seller has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Sections 9.3(a)(i) and 9.3(a)(ii)), then the breaching Party shall pay to the other, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, the terminating Party’s actual and reasonable outBreak-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses incurred in connection with this Agreement, subject to a maximum of $4,000,000Up Fee. (b) The provision for payment Buyer and Seller hereby acknowledge that the obligation to deliver the Break-Up Fee (to the extent due hereunder) shall survive the termination of this Agreement and shall be paid pursuant to the terms herein. (c) Each of the Parties hereto acknowledges and agrees that in light of the difficulty of accurately determining actual damages with respect to the foregoing, upon any such termination of this Agreement by Seller in circumstances where the Break-Up Fee is required to be paid pursuant to this Section 6.7, the right to the Break-Up Fee constitutes a reasonable estimate of the Losses that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages (and not a penalty). (d) The Parties hereunder acknowledge that the agreements contained in this Section 9.3 has been included because6.7 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither of the Parties hereto would enter into this Agreement. For the avoidance of doubt, subject to the terms and conditions set forth herein, upon payment of the Break-Up Fee, Buyer shall have no further liability under or in the event respect of a breach by Buyer this Agreement or Seller, as the case may be, the actual damages to be incurred by any Party can reasonably be expected to approximate the amount of liquidated damages called for herein and because the actual amount of such damages would be difficult if not impossible to measure accuratelyTransaction Document.

Break-Up Fee. (a) If this Agreement is terminated by the Buyer pursuant to Section 9.1(b7.1(d) or the Selling Parties pursuant to Section 7.1(e), thenwithin five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Seven Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($7,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Sellers would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Claims Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and remedies acknowledge that might otherwise the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be available with respect theretodifficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, including elsewhere hereunder payment of such fee shall be the sole and notwithstanding exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any other provision Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such payment of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following the termination of this Agreement: (i) if Agreement none of the Buyer has breached or its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Purchase Price Break-Up Fee when due pursuant to Sections 2.2 and 2.5 this Section 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, or its obligations under Section 6.1(a), 6.1(c) or 6.28 andthe Buyer against the Selling Parties, in the case of Section 6.28, such breach has not been cured within one Business Day, then Buyer shall pay to Seller, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% connection with payment or collection of the Base Purchase Price; (ii) if Seller has breached its obligations to sell the Company Interests to Buyer pursuant to Sections 2.1 and 2.4 or its obligations under Section 6.1(a) or 6.1(c), then Seller shall pay Buyer, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; or (iii) if either Buyer or Seller has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Sections 9.3(a)(i) and 9.3(a)(ii)), then the breaching Party shall pay to the other, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damagesBreak-up Fee, the terminating Party’s actual prevailing party in such action shall be entitled to recover attorneys’ fees, expenses, and reasonable out-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses court costs incurred in connection with this Agreement, subject to a maximum of $4,000,000therewith. (b) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of a breach by Buyer or Seller, as the case may be, the actual damages to be incurred by any Party can reasonably be expected to approximate the amount of liquidated damages called for herein and because the actual amount of such damages would be difficult if not impossible to measure accurately.

Break-Up Fee. (a) If this Agreement is terminated by Buyer pursuant to Section 9.1(b7.1(d) or the Selling Parties pursuant to Section 7.1(e), thenwithin five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Four Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Seller would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Claims Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and remedies acknowledge that might otherwise the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be available with respect theretodifficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, including elsewhere hereunder payment of such fee shall be the sole and notwithstanding exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any other provision Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such payment of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following the termination of this Agreement: (i) if Agreement none of the Buyer has breached or its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Purchase Price Break-Up Fee when due pursuant to Sections 2.2 and 2.5 this Section 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, or its obligations under Section 6.1(a), 6.1(c) or 6.28 andthe Buyer against the Selling Parties, in the case of Section 6.28, such breach has not been cured within one Business Day, then Buyer shall pay to Seller, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% connection with payment or collection of the Base Purchase Price; (ii) if Seller has breached its obligations to sell the Company Interests to Buyer pursuant to Sections 2.1 and 2.4 or its obligations under Section 6.1(a) or 6.1(c), then Seller shall pay Buyer, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; or (iii) if either Buyer or Seller has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Sections 9.3(a)(i) and 9.3(a)(ii)), then the breaching Party shall pay to the other, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damagesBreak-up Fee, the terminating Party’s actual prevailing party in such action shall be entitled to recover attorneys’ fees, expenses, and reasonable out-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses court costs incurred in connection with this Agreement, subject to a maximum of $4,000,000therewith. (b) The provision for payment of liquidated damages in this Section 9.3 has been included because, in the event of a breach by Buyer or Seller, as the case may be, the actual damages to be incurred by any Party can reasonably be expected to approximate the amount of liquidated damages called for herein and because the actual amount of such damages would be difficult if not impossible to measure accurately.