Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. (a) If this Agreement is terminated by Seller and the Company pursuant to Section 11.1(a)(vi), upon receiving a Break-Up Fee and Deposit pursuant to Section 8.2, Section 11.1(a)(vi), and Section 11.3(c), Buyer may not claim any additional damages as a result of such termination, and Buyer hereby waives any right to seek any additional damages against Seller, the Company or any of their Affiliates, including consequential damages. (b) As a condition of payment, and upon receipt of the Break-Up Fee and Deposit pursuant to Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Buyer hereby irrevocably and unconditionally releases, acquits, and forever discharges Seller and the Company and their respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related thereto. (c) Upon the Break-Up Fee and Deposit being payable to Buyer pursuant to Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Seller hereby irrevocably and unconditionally releases, acquits, and forever discharges Buyer and its respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related thereto.

Break-Up Fee. SeaMED agrees to pay Plexus, (aprovided that Plexus is not then in material breach of any representation, warranty, covenant or agreement contained in this Agreement) If within two (2) business days after the termination of this Agreement (or such later date as may apply in the case of (ii) below) by wire transfer, the sum of $3.2 Million in immediately available funds, plus interest on the amounts owed at the prime rate as announced by Key Bank N.A. in effect from time to time during such period plus two percent (the "BREAK-UP FEE") in the event that following the date of the execution of this Agreement, and at or prior to the termination of this Agreement, any of the following events shall have occurred: (i) Plexus shall have terminated this Agreement pursuant to Section 9.1(c)(v), (vi), (vii) or (viii) hereof; or (ii) if (A) either (y) SeaMED, any of its subsidiaries or any of their Representatives shall have taken any actions pursuant to clause (b) or (c) of the proviso set forth in Section 3.9.3 or (z) an Other Proposal shall have been made to SeaMED or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make such an Other Proposal with respect to SeaMED and thereafter this Agreement is terminated by Seller and the Company either Plexus or SeaMED pursuant to Section 11.1(a)(vi9.1(c)(iv) or 9.1(d)(iii), upon receiving a respectively, and (B) SeaMED consummates an agreement for an Other Transaction within twelve (12) months after termination of this Agreement, SeaMED shall promptly, but in no event later than the date of such consummation, pay to Plexus the Break-Up Fee and Deposit up Fee. The right to the payment of the fees set forth in this Section 3.9.5 shall be the exclusive remedy at law or in equity to which Plexus may be entitled upon termination of this Agreement pursuant to Section 8.2, Section 11.1(a)(vi9.1(c)(v), and (vi) or (vii) hereof. SeaMED acknowledges that the agreements contained in this Section 11.3(c), Buyer may not claim any additional damages as a result 3.9.5 are an integral part of such terminationthe transactions contemplated by this Agreement, and Buyer hereby waives any right that, without these agreements, Plexus and Acquisition would not enter into this Agreement. If SeaMED fails to seek any additional damages against Sellerpromptly pay the amount due pursuant to this Section 3.9.5 and, the Company or any of their Affiliates, including consequential damages. (b) As a condition of in order to obtain such payment, Plexus commences a suit which results in a judgment against SeaMED for the fee set forth therein, if Plexus prevails in such suit, SeaMED shall pay to Plexus its reasonable costs and upon receipt of the Break-Up Fee and Deposit pursuant to Section 8.2, Section 11.1(a)(viexpenses (including attorneys' fees) and Section 11.3(c), Buyer hereby irrevocably and unconditionally releases, acquits, and forever discharges Seller and the Company and their respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related theretowith such suit, together with interest from the date of termination of this Agreement. The agreements contained in this Section 3.9.5 of this Agreement are an integral part of this Agreement and constitute liquidated damages and not a penalty. (c) Upon the Break-Up Fee and Deposit being payable to Buyer pursuant to Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Seller hereby irrevocably and unconditionally releases, acquits, and forever discharges Buyer and its respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related thereto.

Break-Up Fee. (a) If In the event that this Agreement is terminated (i) by Seller and the Company Buyer or the Sellers pursuant to Section 11.1(a)(vi)7.02(b) and at the time of such termination (A) the condition set forth in Section 6.01(a) is not then satisfied as a result of a Restraint related to any Antitrust Law or (B) the condition set forth in Section 6.01(b) is not then satisfied or (ii) by the Buyer or the Sellers pursuant to Section 7.02(c) in connection with a Restraint related to any Antitrust Law, upon receiving a then the Sellers shall be entitled to receive an amount equal to $58,750,000 (the “Break-Up Fee”) from the Escrow Account in accordance with Section 2.04(b)(ii) (it being understood that in no event shall the Buyer be required to pay the Break-Up Fee and Deposit on more than one occasion). In the event that the Sellers receive full payment of the Break-Up Fee pursuant to Section 8.2, Section 11.1(a)(vi), and Section 11.3(c), Buyer may not claim any additional damages as a result of such termination, and Buyer hereby waives any right to seek any additional damages against SellerSections 7.04(a)(i) or (ii) under circumstances where the Break-Up Fee is payable, the Company or any of their Affiliates, including consequential damages. (b) As a condition of payment, and upon receipt of the Break-Up Fee and Deposit pursuant to Section 8.2such expenses shall be the sole and exclusive remedy (whether at law, Section 11.1(a)(vi) and Section 11.3(c)in equity, Buyer hereby irrevocably and unconditionally releasesin contract, acquits, and forever discharges Seller and the Company and their respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate in tort or otherwise) of and from for any and all Released Claims arising out oflosses or damages suffered or incurred by the Sellers or any Seller Related Party against the Buyer or any Buyer Related Party in connection with this Agreement (and the actual or purported termination hereof) and the transactions contemplated hereby (and the abandonment thereof), based uponor any matter forming the basis for such termination, resulting from or relating other than with respect to any Intentional Breach; provided, that nothing in this Section 7.04(a) shall limit the negotiation, execution, performance, breach or otherwise related to or arising out obligations of the Transaction Documents Buyer or any agreement entered into in connection therewith or related theretoof its Affiliates under the Confidentiality Agreement. (cb) Upon Each of the Break-Up Fee and Deposit being payable to Buyer pursuant to Parties acknowledges that the agreements contained in this Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Seller hereby irrevocably and unconditionally releases, acquits7.04 are an integral part of the transactions contemplated by this Agreement, and forever discharges Buyer and its respective successorsthat without these agreements, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and the other Affiliates (corporate or otherwise) Parties would not enter into this Agreement. All payments under this Section 7.04 shall be made by wire transfer of and from any and all Released Claims arising out of, based upon, resulting from or relating immediately available funds to an account designated in writing by the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related theretoSellers.

Break-Up Fee. (a) If Subject to Section 12.05(c), if Buyer terminates this Agreement pursuant to: (i) Section 12.01(b) under circumstances where the failure of the Closing to occur on or prior to the Outside Date is terminated directly caused by or results from the breach or failure of Seller and to perform its obligations under this Agreement in any material respect; (ii) Section 12.01(c) under circumstances where the Company Governmental Order that is the subject of Section 12.01(c) is directly caused by or results from the breach or failure of Seller to perform its obligations under this Agreement in any material respect; or (iii) Section 12.01(d), then Seller shall pay to Buyer the Break-Up Fee. (b) If Seller terminates this Agreement pursuant to Section 11.1(a)(vi12.01(h), upon receiving then Seller shall pay to Buyer the Break-Up Fee. (c) If (i) Seller, the Rehabilitator or any Acquired Company receives an Alternate Proposal that is superior in any material respect to the proposal effected under this Agreement or offers consideration materially in excess of the Purchase Price payable hereunder (a “Superior Proposal”) prior to termination of this Agreement, (ii) (A) Buyer or Seller terminates 100 this Agreement pursuant to Section 12.01(c) where the Governmental Order that is the subject of Section 12.01(c) does not directly result from the breach or failure of Buyer to perform its obligations under this Agreement in any material respect, or (B) Buyer or Seller terminates this Agreement pursuant to Section 12.01(b) under circumstances where the failure of the Closing to occur on or prior to the Outside Date does not directly result from the breach or failure of Buyer to perform its obligations under this Agreement in any material respect, then notwithstanding anything herein to the contrary, (x) no Reverse Break-Up Fee shall be due and payable under Section 12.05(c) and (y) if Seller, its Affiliates, the Rehabilitator or any Acquired Company consummates such Superior Proposal, or any other Superior Proposal made by the Alternate Bidder that originally made such Superior Proposal, or any of its Affiliates, within eighteen (18) months after termination of this Agreement, then Seller shall pay to Buyer the Break-Up Fee. For the avoidance of doubt, if either party terminates this Agreement at a time when such party has grounds to terminate this Agreement that would result in payment of a Break-Up Fee, and at such time, Seller has alternate grounds to terminate this Agreement that would not result in payment of a Break-Up Fee and Deposit pursuant to under this Section 8.212.04, Section 11.1(a)(vi), and Section 11.3(c), Buyer may not claim any additional damages as a result of such termination, and Buyer hereby waives any right to seek any additional damages against Seller, the Company or any of their Affiliates, including consequential damages. (b) As a condition of payment, and upon receipt of the then no Break-Up Fee and Deposit pursuant to shall be payable under this Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Buyer hereby irrevocably and unconditionally releases, acquits, and forever discharges Seller and the Company and their respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related thereto12.04. (c) Upon the Break-Up Fee and Deposit being payable to Buyer pursuant to Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Seller hereby irrevocably and unconditionally releases, acquits, and forever discharges Buyer and its respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related thereto.

Break-Up Fee. (a) If Subject to Section 12.05(c), if Buyer terminates this Agreement pursuant to: (i) Section 12.01(b) under circumstances where the failure of the Closing to occur on or prior to the Outside Date is terminated directly caused by or results from the breach or failure of Seller and to perform its obligations under this Agreement in any material respect; (ii) Section 12.01(c) under circumstances where the Company Governmental Order that is the subject of Section 12.01(c) is directly caused by or results from the breach or failure of Seller to perform its obligations under this Agreement in any material respect; or (iii) Section 12.01(d), then Seller shall pay to Buyer the Break-Up Fee. (b) If Seller terminates this Agreement pursuant to Section 11.1(a)(vi12.01(h), upon receiving then Seller shall pay to Buyer the Break-Up Fee. (c) If (i) Seller, the Rehabilitator or any Acquired Company receives an Alternate Proposal that is superior in any material respect to the proposal effected under this Agreement or offers consideration materially in excess of the Purchase Price payable hereunder (a “Superior Proposal”) prior to termination of this Agreement, (ii) (A) Buyer or Seller terminates this Agreement pursuant to Section 12.01(c) where the Governmental Order that is the subject of Section 12.01(c) does not directly result from the breach or failure of Buyer to perform its obligations under this Agreement in any material respect, or (B) Buyer or Seller terminates this Agreement pursuant to Section 12.01(b) under circumstances where the failure of the Closing to occur on or prior to the Outside Date does not directly result from the breach or failure of Buyer to perform its obligations under this Agreement in any material respect, then notwithstanding anything herein to the contrary, (x) no Reverse Break-Up Fee shall be due and payable under Section 12.05(c) and (y) if Seller, its Affiliates, the Rehabilitator or any Acquired Company consummates such Superior Proposal, or any other Superior Proposal made by the Alternate Bidder that originally made such Superior Proposal, or any of its Affiliates, within eighteen (18) months after termination of this Agreement, then Seller shall pay to Buyer the Break-Up Fee. For the avoidance of doubt, if either party terminates this Agreement at a time when such party has grounds to terminate this Agreement that would result in payment of a Break-Up Fee, and at such time, Seller has alternate grounds to terminate this Agreement that would not result in payment of a Break-Up Fee and Deposit pursuant to under this Section 8.212.04, Section 11.1(a)(vi), and Section 11.3(c), Buyer may not claim any additional damages as a result of such termination, and Buyer hereby waives any right to seek any additional damages against Seller, the Company or any of their Affiliates, including consequential damages. (b) As a condition of payment, and upon receipt of the then no Break-Up Fee and Deposit pursuant to shall be payable under this Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Buyer hereby irrevocably and unconditionally releases, acquits, and forever discharges Seller and the Company and their respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related thereto12.04. (c) Upon the Break-Up Fee and Deposit being payable to Buyer pursuant to Section 8.2, Section 11.1(a)(vi) and Section 11.3(c), Seller hereby irrevocably and unconditionally releases, acquits, and forever discharges Buyer and its respective successors, assigns, officers, directors, employees, agents, stockholders, subsidiaries, parent companies and other Affiliates (corporate or otherwise) of and from any and all Released Claims arising out of, based upon, resulting from or relating to the negotiation, execution, performance, breach or otherwise related to or arising out of the Transaction Documents or any agreement entered into in connection therewith or related thereto.