Purchaser Termination Fee. (a) Purchasers shall pay to Seller the Purchaser Termination Fee if (i) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b) and (B) either Purchaser is in breach of any of its covenants set forth in Section 5.09 with respect to the CFIUS Approval; (ii) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b) and (B) any consent, approval or Governmental Order of any Governmental Authority required by or with respect to either Purchaser in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby or thereby, other than the CFIUS Approval, was not obtained prior to the Outside Date; or (iii) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b), (B) all of the conditions set forth in Sections 6.01 and 6.02 have been satisfied except for those conditions which, by their terms, are required to be satisfied or performed at Closing, each of which is capable of being satisfied at the Closing, and (C) Purchasers shall have failed to consummate the transactions contemplated by this Agreement by the Outside Date; provided, however, that in the case of clause (i), subject to Section 8.02 and Section 9.08, and except in the case of fraud or willful misconduct by Purchasers, payment of the Purchaser Termination Fee in accordance with this Section 8.04 will be the exclusive remedy of Seller with respect to any and all monetary damages arising under this Agreement. Nothing in this Section 8.04 shall inhibit Seller’s ability to seek specific performance pursuant to the terms of Section 9.08.
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Purchaser Termination Fee. (a) Purchasers shall pay to Seller In the Purchaser Termination Fee if event that: (i) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b) and (B) either Purchaser is in breach of any of its covenants set forth in Section 5.09 with respect to the CFIUS Approval; (ii) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b9.1(b)(i) and at a time when only the conditions (B) any consent, approval or Governmental Order of any Governmental Authority required by or with respect to either Purchaser in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby or thereby, other than the CFIUS Approval, was not obtained prior to the Outside Date; or (iii) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b), (B) all of the conditions set forth in Sections 6.01 and 6.02 have been satisfied except for those conditions which, that by their terms, nature are required to be satisfied or performed at Closing, each of which is capable of being satisfied at the Closing, and but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section 8.1(b) have not been satisfied, (B) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (C) Purchasers shall have Section 9.1(b)(iv); and (ii) the conditions in Section 8.1(a) and Section 8.1(b) failed to consummate be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section 5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the transactions contemplated termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or cause to be paid, by this Agreement by way of compensation to Seller an amount equal to $100,000,000 (the Outside Date“Regulatory Termination Fee”); provided, however, that that, if this Agreement has been terminated in the case of circumstances set forth in the preceding clause (i), subject to ) and the conditions in Section 8.02 8.1(a) and Section 9.08, and except in the case of fraud or willful misconduct by Purchasers, payment of the Purchaser Termination Fee in accordance with this Section 8.04 will be the exclusive remedy of Seller with respect to any and all monetary damages arising under this Agreement. Nothing in this Section 8.04 shall inhibit Seller’s ability to seek specific performance pursuant to the terms of Section 9.08.8.1(b) would have been satisfied but for
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Purchaser Termination Fee. (a) Purchasers shall pay to Seller In the Purchaser Termination Fee if event that: (i) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b) and (B) either Purchaser is in breach of any of its covenants set forth in Section 5.09 with respect to the CFIUS Approval; (ii) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b9.1(b)(i) and at a time when only the conditions (B) any consent, approval or Governmental Order of any Governmental Authority required by or with respect to either Purchaser in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby or thereby, other than the CFIUS Approval, was not obtained prior to the Outside Date; or (iii) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b), (B) all of the conditions set forth in Sections 6.01 and 6.02 have been satisfied except for those conditions which, that by their terms, nature are required to be satisfied or performed at Closing, each of which is capable of being satisfied at the Closing, and but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section 8.1(b) have not been satisfied, (B) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (C) Purchasers shall have Section 9.1(b)(iv); and (ii) the conditions in Section 8.1(a) and Section 8.1(b) failed to consummate be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section 5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the transactions contemplated termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or cause to be paid, by this Agreement by way of compensation to Seller an amount equal to $100,000,000 (the Outside Date“Regulatory Termination Fee”); provided, however, that that, if this Agreement has been terminated in the case of circumstances set forth in the preceding clause (i) and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but - 73 - for (x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section 5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the termination of this Agreement), then, subject to Section 8.02 9.3(c), Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to $200,000,000 (the “Purchaser Termination Fee”). If the Regulatory Termination Fee or the Purchaser Termination Fee becomes due and payable in accordance with this Section 9.089.3(b), then such fee shall be paid in each case by wire transfer (to an account designated by Seller) of immediately available funds (I) prior to or concurrently with such termination in the event of a termination by Purchaser or (II) no later than five Business Days following such termination in the event of a termination by Seller. In no event will Parent be required to pay the Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section 9.3(b) and in no event will Parent be required to pay both the Purchaser Termination Fee and the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee are payable pursuant to this Section 9.3(b), then Seller shall only be entitled to receive, and except in Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case of fraud or willful misconduct by Purchasersmay be, payment on more than one occasion. The Parties acknowledge that each of the Purchaser Termination Fee and the Regulatory Termination Fee will not constitute a penalty but is liquidated damages, in accordance a reasonable amount that will compensate Seller for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, which amount would otherwise be impossible to calculate with precision. Except in the case of Willful Breach or Actual Fraud, in any circumstance in which Seller receives the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, pursuant to this Section 8.04 9.3(b), receipt of such fee will be the sole and exclusive remedy of Seller with respect to and its Affiliates and their respective Representatives against Purchaser, Parent and their respective Affiliates and Representatives for any and all monetary damages arising under this Agreement. Nothing loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Section 8.04 shall inhibit Seller’s ability Agreement or in connection with the transactions contemplated hereby, and upon receipt of the Purchaser Termination Fee or the Regulatory Termination Fee, none of the foregoing Persons will have any further liability or obligation relating to seek specific performance pursuant or arising out of this Agreement or the transactions contemplated hereby, whether in equity or at law, in contract, in tort or otherwise. (c) Anything to the terms contrary in Section 9.3(a) or Section 9.3(b) notwithstanding: (i) Purchaser shall not be entitled to receive, and Seller shall not be obligated to pay, the Seller Termination Fee in the event that (A) Purchaser has failed to agree or to commit to undertake a Purchaser Burdensome Condition or (B) Purchaser has failed to perform in any material respect any of its obligations under Section 9.08.5.5 and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but for such failure; and (ii) Seller shall not be entitled to receive, and Purchaser shall not be obligated to pay, the Purchaser Termination Fee or Regulatory Termination Fee in the event that (A) Seller has failed to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller has failed to perform in any material respect any of its obligations under Section 5.5 and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but for such failure. 9.4
Appears in 1 contract
Samples: Stock Purchase Agreement
Purchaser Termination Fee. (a) Purchasers shall pay to Seller In the Purchaser Termination Fee if (i) (A) event that this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b) and (B) either Purchaser is in breach of any of its covenants set forth in Section 5.09 with respect to the CFIUS Approval; (iia) (Ai) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b9.1(b)(i) and at a time when only the conditions (B) any consent, approval or Governmental Order of any Governmental Authority required by or with respect to either Purchaser in connection with the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby or thereby, other than the CFIUS Approval, was not obtained prior to the Outside Date; or (iii) (A) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b), (B) all of the conditions set forth in Sections 6.01 and 6.02 have been satisfied except for those conditions which, that by their terms, nature are required to be satisfied or performed at Closing, each of which is capable of being satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section 8.1(b) have not been satisfied, (ii) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity - 64 - that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (iii) Section 9.1(b)(iv) and (Cb) Purchasers shall (i) the conditions in Section 8.1(a) and Section 8.1(b) would have failed been satisfied but for Purchaser’s failure to consummate agree or to commit to undertake a Purchaser Burdensome Condition or (ii) Purchaser’s failure to perform its obligations in any material respect set forth in Section 5.5, then, subject to Section 9.4, Parent will pay, or cause to be paid, by way of compensation to Seller an amount equal to $6,000,000 by wire transfer (to an account designated by Seller) of immediately available funds no later than five Business Days following such termination (the transactions contemplated by “Purchaser Termination Fee”). In no event will Parent be required to pay, or cause to be paid, such amount other than circumstances described in this Section 9.3, and in no event will Parent be required to pay such amount on more than one occasion. The Parties acknowledge that such amount will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Seller for the efforts and resources expended and opportunities foregone while negotiating this Agreement by the Outside Date; providedand in reliance on this Agreement, however, that which amount would otherwise be impossible to calculate with precision. Except in the case of clause (i)Actual Fraud or Willful Breach of this Agreement, subject in any circumstance in which Seller receives such amount pursuant to Section 8.02 and Section 9.08, and except in the case of fraud or willful misconduct by Purchasers, payment of the Purchaser Termination Fee in accordance with this Section 8.04 9.3, receipt of such amount will be the sole and exclusive remedy of Seller with respect to and its Affiliates and Representatives against Parent, Purchaser, their respective Affiliates and their respective Representatives for any and all monetary damages arising under loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement, the transactions contemplated hereby, and upon receipt of such amount, none of the foregoing Persons will have any further liability or obligation relating to or arising out of this Agreement, the transactions contemplated hereby, whether in equity or at law, in contract, in tort or otherwise. Nothing in this Section 8.04 shall inhibit Seller’s ability to seek specific performance pursuant to the terms of Section 9.08.9.4
Appears in 1 contract
Samples: Equity Interest Purchase Agreement
