Common use of Company Termination Fee Clause in Contracts

Company Termination Fee. Any provision in this Agreement to the contrary notwithstanding, in the event that: (i) Parent shall terminate this Agreement pursuant to Section 9.1(d); (ii) (A) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(ii), (B) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained or (C) this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and in each case of clauses (A), (B) and (C), after the date of this Agreement but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known whether or not withdrawn, (x) prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (y) prior to the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or (iii) the Company shall terminate this Agreement pursuant to Section 9.1(f), then in any case as described in clause (i), (ii) or (iii) the Company shall pay (or cause to be paid) to Parent (by wire transfer of immediately available funds), (x) in the case described in clause (i) or (iii), a fee of $1,715,000,000 (one billion seven hundred fifteen million dollars) (the “Company Termination Fee”) not later than the date of termination of this Agreement, and (y) in the case described in clause (ii), an amount equal to the Company Termination Fee not later than the earlier of the date an Acquisition Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as, in either case, such Acquisition Proposal is consummated or such definitive agreement is executed within twelve (12) months after the date of termination of this Agreement; provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%. The Company acknowledges that the agreements contained in this Section 10.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails to pay timely any amount due pursuant to this Section 10.5(a) and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the amount payable to Parent pursuant to this Section 10.5(a), the Company shall pay to Parent its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as of the date such payment was required to be made pursuant to this Agreement) plus three percent (3%). Subject in all cases to Section 9.2, in circumstances where the Company Termination Fee is paid in accordance with this Section 10.5(a), Parent’s receipt of the Company Termination Fee from or on behalf of the Company shall be Parent’s and Merger Subsidiary’s sole and exclusive remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise) against the Company and its Subsidiaries and any of their respective former, current or future direct or indirect equity holders, general or limited partners, controlling persons, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees for all losses and damages suffered as a result of the failure of the Merger or the other Transactions to be consummated, for any breach or failure to perform hereunder or otherwise, and upon payment of such amount, no such Person shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.

Company Termination Fee. Any provision in this Agreement to the contrary notwithstanding, in the event that: if (i) Parent the Company shall terminate have terminated this Agreement pursuant to Section 9.1(d7.1(g)(i); , (ii) Parent shall have terminated this Agreement pursuant to Section 7.1(g)(ii), or (iii) (A) after the date of this Agreement is terminated by but (x) prior to the Company or Parent Stockholders’ Meeting (in the case of a termination pursuant to Section 9.1(b)(ii7.1(d)) or (y) prior to the End Date (in the case of a termination pursuant to Section 7.1(b)) provided that the condition set forth in Section 6.1(a) is not satisfied, an Alternative Proposal (disregarding the word “inquiry” in the definition thereof) is publicly proposed or publicly disclosed, or any Person shall have publicly announced an intention (whether or not conditional) to make an Alternative Proposal (disregarding the word “inquiry” in the definition thereof), prior to, and not withdrawn at least two (2) Business Days prior to, the Company Stockholders’ Meeting (in the case of a termination pursuant to Section 7.1(d)) or prior to the End Date (in the case of a termination pursuant to Section 7.1(b)), (B) this Agreement is terminated by Parent or the Company or Parent pursuant to Section 9.1(b)(i7.1(b) and the Company Stockholder Approval shall not theretofore have been obtained or (C) this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and in each case of clauses (A), (B7.1(d) and (C), ) concurrently with or within twelve (12) months after the date of this Agreement but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known whether or not withdrawntermination, (x) prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (y) prior to the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or (iiixx) the Company shall terminate this Agreement pursuant to Section 9.1(f)have entered into a definitive agreement providing for a transaction that constitutes an Alternative Proposal (which transaction is subsequently consummated, then in any case as described in clause whether during or following such twelve (i), (ii12)-month period) or (iiiyy) the Company shall pay have completed a transaction that constitutes an Alternative Proposal (or cause it being understood that, for purposes of this clause (C), such transaction need not be with the same Person that made the Alternative Proposal under clause (A) and that references to “twenty percent (20%)” in the definition of Alternative Proposal shall be “fifty percent (50%)” for any fee to be paid) to Parent (payable under this Section 7.3(a)), then the Company shall pay, by wire transfer of immediately available funds), (x) in the case described in clause (i) or (iii)funds to an account designated by Parent, a fee of $1,715,000,000 (one billion seven hundred fifteen million dollars) 95,600,000 in cash (the “Company Termination Fee”) not later than the date of termination of this Agreement), such payment to be made prior to or concurrently with, and (y) as a condition to the effectiveness of, termination in the case described of clause (i) above, within three (3) Business Days after such termination in the case of clause (ii) above, or within three (3) Business Days after the last to occur of the events set forth in clause (ii), an amount equal iii) above; it being understood that in no event shall the Company be required to pay the Company Termination Fee not later on more than one occasion. Upon the earlier of the date an Acquisition Proposal is consummated or a definitive agreement is entered into payment by the Company providing of the Company Termination Fee as and when required by this Section 7.3(a), together with any fees, costs, expenses and interest payable pursuant to Section 7.3(c), none of the Company, its Subsidiaries or their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives shall have any further liability with respect to this Agreement or the transactions contemplated by this Agreement to Parent, Merger Sub or their respective Affiliates or Representatives, except to the extent provided in Section 7.2. Payment of the Company Termination Fee pursuant to this Section 7.3(a) shall be deemed to be liquidated damages for any Acquisition Proposaland all losses or damages suffered or incurred by Parent, as long asMerger Sub, any of their respective Affiliates or Representatives or any other Person in either caseconnection with this Agreement (and the termination hereof), the transactions contemplated by this Agreement (and the abandonment thereof) or any matter forming the basis for such Acquisition Proposal is consummated termination, and, upon payment of the Company Termination Fee, none of Parent, Merger Sub, any of their respective Affiliates (collectively, “Parent Related Parties”) or such definitive agreement is executed within twelve (12) months after any other Person shall be entitled to bring or maintain any claim, action or proceeding against the date Company or any of termination its Affiliates arising out of or in connection with this Agreement; provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%. The Company acknowledges that the agreements contained in this Section 10.5(a) are an integral part any of the transactions contemplated by this AgreementAgreement or any matters forming the basis for such termination, and that, without these agreements, Parent would not enter into this Agreementexcept to the extent provided in Section 7.2. Accordingly, if Parent’s right to receive payment from the Company fails to pay timely any amount due of the Company Termination Fee pursuant to this Section 10.5(a7.3(a) and, in order to obtain such payment, Parent commences a suit which results in a judgment against shall be the Company for the amount payable to Parent pursuant to this Section 10.5(a), the Company shall pay to Parent its reasonable costs sole and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as exclusive remedy of the date such payment was required to be made pursuant to this Agreement) plus three percent (3%). Subject in all cases to Section 9.2, Parent Related Parties in circumstances where the Company Termination Fee is paid in accordance with payable pursuant to this Section 10.5(a), Parent’s receipt of the Company Termination Fee from or on behalf of the Company shall be Parent’s and Merger Subsidiary’s sole and exclusive remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise7.3(a) against the Company and its Subsidiaries and any of their respective former, current or future direct or indirect equity holdersofficers, general or limited directors, employees, partners, controlling persons, stockholders, membersoptionholders, managers, directorsmembers, officersother Representatives or Affiliates (collectively, employees, agents, affiliates or assignees “Company Related Parties”) for all losses and damages any loss suffered as a result of the failure of the Merger or the other Transactions transactions contemplated by this Agreement to be consummated, consummated or for any a breach or failure to perform hereunder or otherwise, and upon payment of such amountthe Company Termination Fee, no such Person none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactionstransactions contemplated by this Agreement, except, in each case, to the extent provided in Section 7.2.

Company Termination Fee. Any provision in this Agreement to the contrary notwithstanding, in the event that: (i) Parent shall terminate In the event that the Company terminates this Agreement pursuant to Section 9.1(d); (ii) (A) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(ii), (B) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained or (C) this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and in each case of clauses (A), (B) and (C), after the date of this Agreement but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known whether or not withdrawn, (x) prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (y) prior to the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or (iii) the Company shall terminate this Agreement pursuant to Section 9.1(f7.1(c)(i), then in any case as described in clause (i), (ii) or (iii) the Company shall pay Parent substantially concurrently with such termination pursuant to Section 7.1(c)(i) a one-time fee equal to Thirty-One Million Five Hundred Thousand Dollars (or cause to be paid) to Parent (by wire transfer of immediately available funds), (x) in the case described in clause (i) or (iii), a fee of $1,715,000,000 (one billion seven hundred fifteen million dollars31,500,000) (the “Company Termination Fee”). (ii) not later than In the event that (A) prior to the Company Stockholders’ Meeting, or any adjournment or postponement thereof, in either case, at which a final vote with respect to the Company Stockholder Approval was taken, Parent terminates this Agreement pursuant to Section 7.1(d)(ii)(A), or (B) Parent terminates this Agreement pursuant to Section 7.1(d)(ii)(B) then the Company shall pay Parent within two (2) Business Days of the date of such termination of this Agreement, and (y) in the case described in clause (ii), an amount a one-time fee equal to the Company Termination Fee not later than Fee. (iii) In the earlier event that (A) this Agreement is terminated pursuant to Section 7.1(b)(i), Section 7.1(b)(iii) or Section 7.1(d)(i)(B), (B) at any time prior to the termination of this Agreement (or, in the date an Acquisition Proposal is consummated or case of a definitive agreement is entered into by termination pursuant to Section 7.1(b)(iii), prior to the Company providing for Stockholders’ Meeting, or any Acquisition Proposal, as long asadjournment or postponement thereof, in either case, such Acquisition at which a final vote with respect to the Company Stockholder Approval was taken), an Alternative Transaction Proposal is consummated shall have been communicated to or such definitive agreement is executed otherwise made known to the Company Stockholders, senior management or the Board of Directors of the Company, and (C) within twelve (12) months after the date of termination such termination, the Company enters into any definitive agreement in respect of this Agreement; providedan Alternative Transaction Proposal for which the transaction contemplated thereby is subsequently consummated (regardless if consummated after such twelve (12) month period), howeveror the Company otherwise consummates any other such transaction, then the Company shall pay Parent, within two (2) Business Days of the date such transaction is consummated, a one-time fee equal to the Company Termination Fee (provided that for the purpose purposes of this clause (yii), all references each reference to “20%” in the definition of Acquisition Alternative Transaction Proposal shall be deemed to 20% shall instead refer be references to “50%. ”). (iv) The Company acknowledges that the agreements contained in this Section 10.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Termination Fee or Parent would not enter into this Agreement. AccordinglyExpenses, if the Company fails to pay timely any amount due pursuant to this Section 10.5(a) andand as applicable, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the amount payable to Parent pursuant to this Section 10.5(a), the Company shall pay to Parent its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest be paid by wire transfer of immediately available funds on the amount so payable at applicable date specified above to an account designated by Parent. Parent shall have the rate on six (6)-month United States Treasury obligations (as of right to assign the date such payment was required right to be made pursuant to this Agreement) plus three percent (3%). Subject in all cases to Section 9.2, in circumstances where receive the Company Termination Fee is paid or Parent Expenses to one or more Affiliates of Parent in accordance with its sole discretion; provided, that, for the avoidance of doubt, any such assignment shall not in any manner whatsoever affect the parties’ agreements set forth in this Section 10.5(a), Parent’s receipt of the Company Termination Fee from or on behalf of the Company shall be Parent’s and Merger Subsidiary’s sole and exclusive remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise) against the Company and its Subsidiaries and any of their respective former, current or future direct or indirect equity holders, general or limited partners, controlling persons, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees for all losses and damages suffered as a result of the failure of the Merger or the other Transactions to be consummated, for any breach or failure to perform hereunder or otherwise, and upon payment of such amount, no such Person shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions7.3.

Company Termination Fee. Any Notwithstanding any provision in this Agreement to the contrary notwithstandingcontrary, in the event that: if (i) Parent the Company shall terminate have terminated this Agreement pursuant to Section 9.1(d8.1(g)(i); , (ii) Parent shall have terminated this Agreement pursuant to Section 8.1(g)(ii), or (iii) (A) after the date of this Agreement is terminated by and prior to the Company Stockholders’ Meeting, an Alternative Proposal has been publicly proposed or Parent publicly disclosed, and not withdrawn, (x) in the case of a termination pursuant to Section 9.1(b)(ii8.1(d), at least three (3) days prior to the Company Stockholders’ Meeting and (y) in the case of a termination pursuant to Section 8.1(b) or Section 8.1(f), prior to such termination, (B) this Agreement is subsequently terminated by Parent or the Company or Parent pursuant to Section 9.1(b)(i8.1(b) and the Company Stockholder Approval shall not theretofore have been obtained or (C) this Agreement is terminated Section 8.1(d), or by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and in each case of clauses (A8.1(f), (B) and (C), after the date of this Agreement but on ) concurrently with or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known whether or not withdrawn, (x) prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (y) prior to the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or (iii) the Company shall terminate this Agreement pursuant to Section 9.1(f), then in any case as described in clause (i), (ii) or (iii) the Company shall pay (or cause to be paid) to Parent (by wire transfer of immediately available funds), (x) in the case described in clause (i) or (iii), a fee of $1,715,000,000 (one billion seven hundred fifteen million dollars) (the “Company Termination Fee”) not later than the date of termination of this Agreement, and (y) in the case described in clause (ii), an amount equal to the Company Termination Fee not later than the earlier of the date an Acquisition Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as, in either case, such Acquisition Proposal is consummated or such definitive agreement is executed within twelve (12) months after such termination, (x) the date Company shall have entered into a definitive agreement providing for a transaction that constitutes an Alternative Proposal (which transaction is subsequently consummated, whether during or following such twelve (12) month period) or (y) the Company shall have consummated a transaction that constitutes an Alternative Proposal (it being understood that, for purposes of termination clause (A) and of this Agreementclause (C), references to “twenty percent (20%)” in the definition of Alternative Proposal shall be “fifty percent (50%)” for any fee to be payable under this Section 8.3(a)), then the Company shall pay the Company Termination Fee to Parent (or its designee(s)) by wire transfer of immediately available funds to an account designated by Parent (or its designee(s)), such payment to be made prior to or concurrently with, and as a condition to the effectiveness of, termination in the case of clause (i) above, within three (3) Business Days after such termination in the case of clause (ii) above, or, in the case of clause (iii) above, within three (3) Business Days after the consummation of the transaction that constitutes an Alternative Proposal; provided, however, that for in the purpose case of this clause (y)i) above, all references if such termination occurs prior to the sixteenth (16th) day after the No-Shop Period Start Date because of a Superior Proposal made by an Excluded Party, or in the definition case of Acquisition Proposal to 20% shall instead refer to 50%. The Company acknowledges that the agreements contained in this Section 10.5(aclause (ii) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement. Accordinglyabove, if the Change of Recommendation giving rise to such termination occurs in response to an Alternative Proposal made by an Excluded Party and such termination occurs prior to the sixteenth (16th) day after the No-Shop Period Start Date, then the “Company fails Termination Fee” shall mean an amount equal to $73,270,000. In no event shall the Company be required to pay timely any amount due pursuant to this Section 10.5(a) and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the amount payable to Parent pursuant to this Section 10.5(a), the Company shall pay to Parent its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as of the date such payment was required to be made pursuant to this Agreement) plus three percent (3%). Subject in all cases to Section 9.2, in circumstances where the Company Termination Fee is paid in accordance with this Section 10.5(a), Parent’s receipt on more than one occasion. Upon the payment by the Company of the Company Termination Fee from or on behalf as and when required by this Section 8.3(a), together with the Enforcement Expenses, none of the Company or any of its former, current or future officers, directors, employees, partners, stockholders, optionholders, managers, members, Affiliates and Representatives (collectively, “Company Related Parties”) shall have any further liability with respect to this Agreement or the Transactions to Parent, Merger Sub or their respective Affiliates or Representatives, except to the extent provided in Section 8.2. Payment of the Company Termination Fee pursuant to this Section 8.3(a), together with the Enforcement Expenses, shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent’s , Merger Sub, any of their respective Affiliates or Representatives or any other Person in connection with this Agreement (and Merger Subsidiary’s sole the termination hereof), the Transactions (and exclusive remedy (whether based in contractthe abandonment thereof) or any matter forming the basis for such termination, tort or strict liabilityand, by the enforcement upon payment of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise) against the Company and its Subsidiaries and Termination Fee, none of Parent, Merger Sub, any of their respective former, current or future direct or indirect equity holdersofficers, general or limited directors, employees, partners, controlling persons, stockholders, membersoptionholders, managers, directorsmembers, officersother Representatives or Affiliates (collectively, employees“Parent Related Parties”) or any other Person shall be entitled to bring or maintain any Action or Legal Proceeding against any of the Company Related Parties arising out of or in connection with this Agreement, agentsany of the Transactions or any matters forming the basis for such termination, affiliates or assignees except to the extent provided in Section 8.2. Parent’s right (and the rights of Xxxxxx’s designee(s)) to receive payment from the Company of the Company Termination Fee pursuant to this Section 8.3(a), together with the Enforcement Expenses, shall be the sole and exclusive remedy of the Parent Related Parties in circumstances where the Company Termination Fee is payable pursuant to this Section 8.3(a) against the Company Related Parties for all losses and damages any loss suffered as a result of the failure of the Merger or the other Transactions to be consummated, consummated or for any a breach or failure to perform hereunder or otherwise, and upon payment of such amountthe Company Termination Fee, no such Person none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except, in each case, to the extent provided in Section 8.2.

Company Termination Fee. Any provision in If, but only if, this Agreement to the contrary notwithstanding, in the event thatis terminated: (i) Parent shall terminate this Agreement by Bidco pursuant to Section 9.1(d9.1(c)(i); (ii) (A) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(ii), (B) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained or (C) this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and in each case of clauses (A), (B) and (C), after the date of this Agreement but on or before the date of any such termination an Acquisition Proposal shall have been made and become publicly known whether or not withdrawn, (x) prior to the Company Stockholder Meeting (in the case of a termination contemplated by clause (ii)(A)) or (y) prior to the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)9.1(d)(ii); or (iii) (x) (A) by the Company shall terminate this Agreement or Bidco pursuant to (i) Section 9.1(b)(i), (ii) Section 9.1(b)(iii), or (iii) Section 9.1(b)(iv), or (B) by Bidco pursuant to Section 9.1(f9.1(c)(ii), then (y) an Acquisition Proposal shall have been communicated to the Company Board or publicly announced, disclosed or otherwise communicated to the Company, in any the case as described in of (1) clause (iA)(i), prior to the End Date, (2) in the case of clause (A)(ii), prior to the Company Shareholder Meeting, (3) in the case of clause (A)(iii), prior to the date of the Court Hearing, or (4) in the case of clause (B), prior to such breach, and (z) within twelve (12) months of such termination of this Agreement, the Company enters into a definitive agreement for or consummates any Acquisition Proposal (provided, that references to 10% in the definition of Acquisition Proposal shall be deemed to be references to 50%); then, in the case of each of clauses (a)(i), (ii) or (iii) ), the Company shall pay to Bidco twenty-six million U.S. dollars (or cause to be paid) to Parent (by wire transfer of immediately available funds), (x) in the case described in clause (i) or (iii), a fee of $1,715,000,000 (one billion seven hundred fifteen million dollars26,000,000) (the “Company Termination Fee”). Any fee due under this Section 9.3(a) not later than shall be paid by wire transfer of immediately available funds to an account provided in writing by Bidco to the date Company (x) in the case of termination of this Agreementclause (a)(i) above, promptly and within two (2) Business Days after such termination, (y) in the case described in of clause (iia)(ii) above, as set forth in Section 9.1(d)(ii)(E), an amount equal to and (z) in the Company Termination Fee not case of clause (a)(iii) above, no later than two (2) Business Days after entry into the earlier of the date an Acquisition Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as, in either case, such Acquisition Proposal is consummated or such definitive agreement is executed within twelve (12) months after the date of termination of this Agreement; provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%. The Company acknowledges that the agreements contained in this Section 10.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails to pay timely any amount due pursuant to this Section 10.5(a) and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the amount payable to Parent pursuant to this Section 10.5(a), the Company shall pay to Parent its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as of the date such payment was required to be made pursuant to this Agreement) plus three percent (3%). Subject in all cases to Section 9.2, in circumstances where the Company Termination Fee is paid in accordance with this Section 10.5(a), Parent’s receipt of the Company Termination Fee from or on behalf of the Company shall be Parent’s and Merger Subsidiary’s sole and exclusive remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise) against the Company and its Subsidiaries and any of their respective former, current or future direct or indirect equity holders, general or limited partners, controlling persons, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees for all losses and damages suffered as a result of the failure of the Merger or the other Transactions to be consummated, for any breach or failure to perform hereunder or otherwise, and upon payment of such amount, no such Person shall have any further liability or obligation relating to or arising out of this Agreement or the Transactionsconsummation described therein.

Company Termination Fee. Any provision in this Agreement to the contrary notwithstanding, in the event that: (i) If this Agreement is terminated (A) by Parent shall pursuant to Section 10.01(c)(i) (provided that if either Parent or the Company terminates this Agreement pursuant to Section 10.01(b)(iv) at a time when Parent would have been entitled to terminate this Agreement pursuant to Section 9.1(d10.01(c)(i);, this Agreement shall be deemed to have been terminated pursuant to Section 10.01(c)(i) for purposes of this Section 11.04) or (B) by the Company pursuant to Section 10.01(d)(i), then the Company shall pay to Parent in immediately available funds $46,700,000 (the “Termination Fee”), in the case of a termination by Parent, within two Business Days after such termination and, in the case of a termination by the Company, prior to or concurrently with, and as a condition to, such termination. (ii) If (A) this Agreement is terminated by Parent or the Company or Parent pursuant to Section 9.1(b)(ii10.01(b)(i) or Section 10.01(b)(iv), (B) this Agreement is terminated by the Company or Parent pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained or (C) this Agreement is terminated by Parent pursuant to Section 9.1(e) and the Company Stockholder Approval shall not theretofore have been obtained, and in each case of clauses (A), (B) and (CB)(1) with respect to termination under Section 10.01(b)(i), after the date of this Agreement but on or before the date of any and prior to such termination an Acquisition Proposal shall have been made publicly announced and become publicly known whether or not withdrawn(2) with respect to termination under Section 10.01(b)(iv), (x) after the date of this Agreement and prior to the Company Stockholder Meeting Meeting, an Acquisition Proposal shall have been publicly announced to the Company’s stockholders and (in the case of a termination contemplated by clause (ii)(A)C) or (y) prior to within 12 months following the date of such termination (in the case of a termination contemplated by clause (ii)(B) or (ii)(C)); or (iii) termination, the Company shall terminate have entered into a definitive agreement with respect to any Acquisition Proposal or any Acquisition Proposal shall have been consummated (provided that for purposes of this Agreement pursuant clause (C), each reference to Section 9.1(f“20%” in the definition of Acquisition Proposal shall be deemed to be a reference to “50%”), then the Company shall pay to Parent in any case as immediately available funds, concurrently with the occurrence of the applicable event described in clause (iC), (ii) or (iii) the Company shall pay (or cause Termination Fee. All amounts paid pursuant to this Section 11.04(b) will be paid) to Parent (by wire transfer of immediately available funds), (x) in the case described in clause (i) or (iii), a fee of $1,715,000,000 (one billion seven hundred fifteen million dollars) (the “Company Termination Fee”) not later than the date of termination of this Agreement, and (y) in the case described in clause (ii), funds to an amount equal to the Company Termination Fee not later than the earlier of the date an Acquisition Proposal is consummated or a definitive agreement is entered into account directed by the Company providing for any Acquisition Proposal, as long as, in either case, such Acquisition Proposal is consummated or such definitive agreement is executed within twelve (12) months after the date of termination of this Agreement; provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%. The Company acknowledges that the agreements contained in this Section 10.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails to pay timely any amount due pursuant to this Section 10.5(a) and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the amount payable to Parent pursuant to this Section 10.5(a), the Company shall pay to Parent its reasonable costs and expenses (including attorneys’ fees and expenses) in connection with such suit, together with interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as of the date such payment was required to be made pursuant to this Agreement) plus three percent (3%). Subject in all cases to Section 9.2, in circumstances where the Company Termination Fee is paid in accordance with this Section 10.5(a), Parent’s receipt of the Company Termination Fee from or on behalf of the Company shall be Parent’s and Merger Subsidiary’s sole and exclusive remedy (whether based in contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise) against the Company and its Subsidiaries and any of their respective former, current or future direct or indirect equity holders, general or limited partners, controlling persons, stockholders, members, managers, directors, officers, employees, agents, affiliates or assignees for all losses and damages suffered as a result of the failure of the Merger or the other Transactions to be consummated, for any breach or failure to perform hereunder or otherwise, and upon payment of such amount, no such Person shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.