Common use of Effect of Termination; Termination Fee Clause in Contracts

Effect of Termination; Termination Fee. In the event of the termination of the Merger Agreement as provided in the "Termination" paragraph above, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination is made, and the Merger Agreement shall forthwith become null and void, except for certain provisions of the Merger Agreement relating to fees and expenses which shall survive such termination, and there shall be no liability on the part of Parent, Merger Subsidiary or the Company except (a) for fraud or for breach of the Merger Agreement, with damages to be limited to out-of-pocket costs and (b) as otherwise set forth in the applicable provisions. Set forth below are the circumstances under which a termination fee is payable under the terms of the Merger Agreement. All references to paragraph numbers refer to the section entitled "Termination" above. If (w) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (c)(i) above, (x) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (d)(ii) above, or (y) (I) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (c)(iii) and prior thereto there shall have been publicly announced another Acquisition Proposal or (II) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (d)(iii) above due to a failure to satisfy the Minimum Condition or the conditions contained in paragraphs (h) or (i) of Section 14 of this Offer to Purchase and Parent shall have reasonably determined that such failure is attributable to there having been publicly announced another Acquisition Proposal, then in any such case as described in clause (w), (x) or (y), the Company shall not later than two business days after such termination of the Merger Agreement or, in the case of any termination by the Company pursuant to paragraph (c)(i) above, simultaneously with such termination pay to Parent an amount in cash equal to the sum of (i) Parent's documented out-of-pocket expenses, incurred in connection with the Merger Agreement and the transactions contemplated hereby not to exceed $1,000,000; and (ii) $500,000 (together, the "Termination Fee"). In the event that the Merger Agreement is terminated pursuant to paragraph (b)(i) above due to a failure to satisfy the Minimum Condition or the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (d)(iii) above due to a failure to satisfy the Minimum Condition, the Company shall (not later than 2 business days after such termination of the Merger Agreement) pay to Parent an amount equal to $1,000,000 in cash; provided, however, that no payment shall be required pursuant to this paragraph if payment is made by the Company to Parent pursuant to the paragraph above.

Effect of Termination; Termination Fee. In the event of the termination of the Merger If this Agreement as provided in the "Termination" paragraph above, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof is validly terminated pursuant to which such termination is madeSection 8.1, and the Merger Agreement shall forthwith become null and void, except for certain provisions of the Merger Agreement relating to fees and expenses which shall survive such termination, and there shall will (a) be no liability or obligation on the part of ParentSeller or Buyer (or any of their respective Representatives or Affiliates), Merger Subsidiary or the Company except (a) for fraud or for breach as provided in this Section 8.2. Regardless of the Merger Agreementreason for termination, with damages to be limited to out-of-pocket costs and Section 5.4(d), Section 5.18, (b) as otherwise Section 5.19, Section 7.7, Section 8.2, Section 8.2(d), Section 8.3 and Article IX (and, in each case the applicable definitions and rules of interpretation set forth in the applicable provisionsArticle I) will survive any termination of this Agreement. Set forth below are the circumstances under which a Upon termination fee is payable under of this Agreement by either Party for any reason, each (c) Party shall return or destroy, in accordance with the terms of the Merger Agreement. All references to paragraph numbers refer Confidentiality Agreements and Section 5.18, all documents and other materials provided by the other Party relating to the section entitled "Termination" aboveAcquired Assets, the Assumed Liabilities, the Facilities or to this Agreement, the Related Agreements or the transactions contemplated hereby or thereby, including any information relating to the Parties to this Agreement, whether obtained before or after the execution of this Agreement, and all information received by Buyer with respect to Seller, the Acquired Assets, the Assumed Liabilities, the Facilities, this Agreement, the Related Agreements or otherwise respecting the transactions contemplated hereby shall remain subject to the terms of the Confidentiality Agreements and Section 5.18. If (w) the Board of Directors of the Company shall terminate the Merger this Agreement is terminated by Buyer pursuant to paragraph (c)(i) above, (x) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (d)(ii) above, or (ySection 8.1(a) (Id) the Board (arising out of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (c)(iii) and prior thereto there shall have been publicly announced another Acquisition Proposal or (II) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (d)(iii) above due to a failure of Seller to satisfy the Minimum Condition or the conditions contained comply in paragraphs (hall material respects with its obligations under this Agreement) or (i) of Section 14 of this Offer to Purchase 8.1(c), and Parent shall have reasonably determined that such failure to comply is attributable through no fault of Buyer, and provided that Buyer has complied in all material respects with its obligations under this Agreement, Buyer shall be entitled to there having been publicly announced another Acquisition Proposal, then in any such case as described in clause (w), (x) or (y), the Company shall not later than two business days after such termination of the Merger Agreement or, in the case of any termination recover from Seller all costs incurred by the Company pursuant to paragraph (c)(i) above, simultaneously with such termination pay to Parent an amount in cash equal to the sum of (i) Parent's documented out-of-pocket expenses, incurred Buyer in connection with the Merger preparation, negotiation and execution of this Agreement or recovery of damages from Seller, including attorneys’ fees and expenses of financial and other advisors. In Public Service Company of New Hampshire dba Eversource Energy Docket DE 17-124 October 12, 2017 Attachment 2 Page 88 of 159 000225 EXECUTION VERSION addition to the transactions contemplated foregoing damages (and not in lieu thereof), if such termination by Buyer occurs after January 1, 2018, Buyer is entitled to its loss of bargain, cost of funding or, at the election of Buyer but without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any gain resulting from any of them) of Buyer relating to any of the Facilities. If this Agreement is terminated by Seller pursuant to Section 8.1(a) (e) (arising out of a failure by Buyer to pay the Purchase Price and make its other Closing deliverables under this Agreement after all of Buyer’s conditions precedents to proceed to Closing have been satisfied) or Section 8.1(b), and such failure to comply is through no fault of Seller, and provided that Seller has complied in all material respects with its obligations under this Agreement, then, and in lieu of any other rights or remedies Seller may have at law or in equity, (i) Buyer hereby agrees to immediately pay to Seller, as liquidated damages (and not a penalty), an amount equal to exceed Twenty-Six Million Two Hundred Fifty Dollars ($1,000,000; 26,250,000) in immediately available funds and (ii) $500,000 (togetherSeller shall have the right to immediately seek such relief from the guarantors under the Guaranty to satisfy such payment obligation. The Parties acknowledge and agree that the provisions for payment of liquidated damages in this Section 8.2(d) have been included because, the "Termination Fee"). In in the event that the Merger Agreement is terminated pursuant to paragraph (b)(i) above due to a failure to satisfy the Minimum Condition or the Operating Board of Parent shall terminate the Merger termination of this Agreement pursuant to paragraph (d)(iiiSection 8.1(a) above due to a failure to satisfy the Minimum Conditionor Section 8.1(b), the Company shall (actual damages to be incurred by Seller are reasonably expected to approximate the amount of liquidated damages set forth in this Section 8.2(d) and because the actual amount of such damages would be difficult if not later than 2 business days after such impossible to measure and prove precisely. The Parties therefore expressly intend to liquidate damages in advance in accordance with this Section 8.2(d), and, without limiting the generality of the foregoing, acknowledge and agree that the amount of liquidated damages set forth in this Section 8.2(d) is reasonable and is not greatly disproportionate to the presumable loss or injury of Seller in the event of termination of this Agreement pursuant to Section 8.1(a) or Section 8.1(b). Buyer acknowledges that the Merger agreements contained in this Section 8.2(d) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Seller would not enter into this Agreement. The Parties acknowledge and agree that (A) pay Seller shall be entitled to Parent pursue either payment of liquidated damages in accordance with this Section 8.2(d) or to pursue specific performance pursuant to Section 8.3 and (B) Seller may, in its sole discretion, elect to receive either an amount equal award of liquidated damages in accordance with this Section 8.2(d) or seek judgment awarding specific performance pursuant to $1,000,000 in cashSection 8.3; provided, however, that the Parties acknowledge and agree that under no circumstance shall Seller be entitled to receive both payment shall be required of liquidated damages in accordance with this Section 8.2(d) and specific performance pursuant to this paragraph if payment is made by the Company to Parent pursuant to the paragraph aboveSection 8.3.

Effect of Termination; Termination Fee. In the event of the termination of the Merger this Agreement as provided in the "Termination" paragraph aboveSection 9.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination is made, and the Merger this Agreement shall forthwith become null and void, except for certain provisions of the Merger Agreement relating to fees and expenses which shall survive such termination, void and there shall be no liability on the part of Parent, Merger Subsidiary or the Company either party except (a) for fraud or for breach the provisions of the Merger AgreementSections 3.20 and 4.5 relating to broker’s fees and finder’s fees, with damages Section 5.8 relating to be limited confidentiality, Section 5.10 relating to outpublic announcements, Section 10.1 relating to fees and expenses, Section 10.4 relating to notices, Section 10.7 relating to third-of-pocket costs party beneficiaries, Section 10.8 relating to governing law, Section 10.9 relating to submission to jurisdiction and this Section 9.2, (b) that nothing herein shall relieve either party from liability for any intentional breach of this Agreement or any agreement made as otherwise set forth of the date hereof or subsequent thereto pursuant to this Agreement and (c) for the provisions of the next sentence of this Section 9.2. Notwithstanding the foregoing, in the applicable provisions. Set forth below are event of: (i) termination of this Agreement by the circumstances under which a Seller pursuant to Section 9.1(b)(i) or termination fee is payable under of this Agreement by Parent or the terms of Buyer pursuant to Section 9.1(f) or 9.1(h), Parent or the Merger Agreement. All references to paragraph numbers refer Buyer shall pay to the section entitled "Termination" above. If Seller a fee of $3,000,000 (w) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (c)(i) above, (x) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (d)(ii) above, or (y) (I) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (c)(iii) and prior thereto there shall have been publicly announced another Acquisition Proposal or (II) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (d)(iii) above due to a failure to satisfy the Minimum Condition or the conditions contained in paragraphs (h“Termination Fee”) or (iii) of Section 14 termination of this Offer to Purchase and Agreement by Parent shall have reasonably determined that such failure is attributable to there having been publicly announced another Acquisition Proposal, then in any such case as described in clause (w), (x) or (ythe Buyer pursuant Section 9.1(b)(ii), the Company Seller shall not later than two business days after such termination pay to the Buyer the Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Seller’s or the Buyer’s respective right to receive payment of the Merger Agreement orTermination Fee pursuant to this Section 9.2 shall be the sole and exclusive remedy of the Seller, in Parent or the Buyer, as the case may be, or any of their respective Affiliates against Parent, the Buyer or the Seller or any termination by of their respective Affiliates or any of their respective stockholders, partners, members or representatives for any and all losses that may be suffered based upon, resulting from or arising out of the Company pursuant circumstances giving rise to paragraph (c)(i) abovesuch termination, simultaneously and upon payment of the Termination Fee in accordance with such termination pay this Section 9.2, none of Parent, the Buyer or the Seller, as applicable, or any of their respective Affiliates or any of their respective stockholders, partners, members or representatives shall have any further liability or obligation relating to Parent an amount in cash equal to the sum or arising out of (i) Parent's documented out-of-pocket expenses, incurred in connection with the Merger this Agreement and or any Ancillary Agreement or the transactions contemplated hereby not to exceed $1,000,000; and (ii) $500,000 (together, the "Termination Fee"). In the event that the Merger by this Agreement is terminated pursuant to paragraph (b)(i) above due to a failure to satisfy the Minimum Condition or the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (d)(iii) above due to a failure to satisfy the Minimum Condition, the Company shall (not later than 2 business days after such termination any of the Merger Agreement) pay to Parent an amount equal to $1,000,000 in cash; provided, however, that no payment shall be required pursuant to this paragraph if payment is made by the Company to Parent pursuant to the paragraph aboveAncillary Agreements.

Effect of Termination; Termination Fee. In the event of the termination of the Merger this Agreement as provided in the "Termination" paragraph above, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination is madethis Article VII, and the Merger this Agreement shall forthwith become null and void, except for certain provisions of the Merger Agreement relating to fees and expenses which shall survive such termination, void and there shall be no liability on the part of Parentany party to this Agreement or its partners, Merger Subsidiary officers, directors or stockholders, except for obligations under Section 4.9 (Public Announcements), Section 8.2 (Fees and Expenses), Section 8.3 (Attorneys’ Fees), Section 8.4 (Waiver; Amendment), Section 8.5 (Entire Agreement), Section 8.7 (Execution of Agreement; Counterparts; Electronic Signatures), Section 8.8 (Governing Law; Jurisdiction and Venue), Section 8.9 (Waiver of Jury Trial), Section 8.10 (Assignment and Successors), Section 8.12 (Notices), Section 8.13 (Construction; Usage), Section 8.14 (Enforcement of Agreement), Section 8.15 (Severability), this Section 7.2, and the definitions used in each of the foregoing sections, including those set forth on Exhibit A attached hereto, all of which shall survive the Termination Date. Notwithstanding the foregoing, nothing contained herein shall relieve any party from liability for any breach hereof. Upon termination of this Agreement, each of the parties shall, in all events, be bound by and be subject to that certain Mutual Non-Disclosure Agreement executed on November 5, 2012 by and between Parent and the Company except (the “Non-Disclosure Agreement”). Parent agrees to pay the Company an amount equal to Three Hundred Fifty Thousand Dollars ($350,000) (the “Termination Fee”) if this Agreement is terminated: (a) for fraud or for breach of the Merger Agreement, with damages to be limited to out-of-pocket costs and (b) as otherwise set forth in the applicable provisions. Set forth below are the circumstances under which a termination fee is payable under the terms of the Merger Agreement. All references to paragraph numbers refer to the section entitled "Termination" above. If (w) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (c)(i) above, (x) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (d)(ii) above, or (y) (I) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (c)(iii) and prior thereto there shall have been publicly announced another Acquisition Proposal or (II) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (d)(iii) above due to a failure to satisfy the Minimum Condition or the conditions contained in paragraphs (h) or (i) of Section 14 of this Offer to Purchase and Parent shall have reasonably determined that such failure is attributable to there having been publicly announced another Acquisition Proposal, then in any such case as described in clause (w), (x) or (y), the Company shall not later than two business days after such termination of the Merger Agreement or, in the case of any termination by the Company pursuant to paragraph Section 7.1(e); (c)(ib) aboveby Parent pursuant to Section 7.1(f); (c) by the Company pursuant to Section 7.1(c) or Section 7.1(d) and, simultaneously with in either case, (x) on or before the date of any such termination pay an Acquisition Proposal shall have been announced, disclosed, or otherwise communicated to Parent an amount in cash equal to the sum Parent’s board of (i) Parent's documented out-of-pocket expensesdirectors, incurred in connection with the Merger Agreement and the transactions contemplated hereby not to exceed $1,000,000; and (iiy) $500,000 (together, the "Termination Fee"). In the event that the Merger Agreement a definitive agreement is terminated pursuant entered into by Parent with respect to paragraph (b)(i) above due to a failure to satisfy the Minimum Condition an Acquisition Transaction or the Operating Board an Acquisition Transaction is consummated within 18 months of Parent shall terminate the Merger Agreement pursuant to paragraph (d)(iii) above due to a failure to satisfy the Minimum Condition, the Company shall (not later than 2 business days after such termination of the Merger this Agreement) pay to Parent an amount equal to $1,000,000 in cash; provided, however, that no payment shall be required pursuant to this paragraph if payment is made by the Company to Parent pursuant to the paragraph above.