Common use of Effect of Termination; Etc Clause in Contracts

Effect of Termination; Etc. (a) In the event of the termination of this Agreement in accordance with Section 7.02, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby shall be abandoned, except that this Section 7.03 and Section 5.07, the indemnification and reimbursement obligations of Parent under Section 5.11(a) and Section 5.12(e), Article VIII (other than Section 8.17), and the Confidentiality Agreement shall survive termination of this Agreement and remain valid and binding obligations of each of the parties, and (ii) subject to the terms and conditions of the surviving provisions of this Agreement, there shall be no liability or obligation on the part of Parent, Merger Sub or the Company or of their respective Affiliates or other equityholders. Notwithstanding the immediately preceding sentence of this Section 7.03(a), termination of this Agreement pursuant to Section 7.02 shall not release any party hereto from any liability (x) pursuant to the sections specified in this Section 7.03(a) that survive such termination or (y) except as expressly provided in any of the provisions that survive such termination, for any Intentional Breach by a party of its representations, warranties, covenants or agreements that occurred prior to such termination. (b) Notwithstanding anything to the contrary contained herein or otherwise, if a court has determined to grant an award of damages in connection with any breach by Parent and/or Merger Sub of the terms or conditions set forth in this Agreement, the Company may, on behalf of the holders of Company Shares, enforce such award and accept damages for such breach, and Parent and Merger Sub agree that such damages shall not be limited to reimbursement of expenses or out-of-pocket costs, and shall, in addition to any damage to the Company and its Subsidiaries, include the benefit of the bargain lost by the holders of Company Shares (taking into consideration all relevant matters, including the loss of the expected premium, other combination opportunities and the time value of money). (c) The parties acknowledge that the agreements contained in this Section 7.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement. (d) If this Agreement is terminated pursuant to Section 7.02 hereof all confidential information received by the parties shall be treated in accordance with the Confidentiality Agreement.

Effect of Termination; Etc. (ai) In the event of the termination of this Agreement in accordance with Section 7.028.06 hereof, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby shall be abandoned, except that this Section 7.03 8.07 and Section 5.07, the indemnification and reimbursement obligations of Parent under Section 5.11(a) and Section 5.12(e)6.06, Article VIII IX (other than Section 8.17), 9.17) and the Confidentiality Agreement shall survive termination of this Agreement and remain valid and binding obligations of each of the parties, and (ii) subject to the terms and conditions of the surviving provisions of this Agreement, there shall be no liability or obligation on the part of Parent, Merger Sub or the Company or of their respective Affiliates or other equityholdersany party hereto. Notwithstanding the immediately preceding sentence of this Section 7.03(a8.07(a), termination of this Agreement pursuant to Section 7.02 8.06 shall not release any party hereto from any liability (x) pursuant to the sections specified in this Section 7.03(a8.07(a) that survive such termination or (y) except as expressly provided in any of the provisions that survive such termination, for (A) any Intentional Breach intentional and material breach by a party of its representationsrepresentations and warranties under this Agreement or (B) any material breach by a party of its covenants and agreements under this Agreement taken with knowledge that such action or inaction was in material breach of this Agreement, warranties, covenants or agreements in each case that occurred prior to such termination. termination (bthe breach described in this clause (B), a “Material Covenant Breach”). Nothing in this Section 8.07(a) shall limit the right of any party hereto to bring or maintain any action (i) for injunction, specific enforcement of the obligations of Purchaser, the Merger Sub or the Company or any other party under this Agreement, or other equitable relief as provided in Section 9.12 or (ii) arising out of or in connection with any breach of the Confidentiality Agreement. Notwithstanding anything to the contrary contained herein or otherwisein this Agreement, if a court has determined to grant an award of damages in connection with is sought against any party hereto for any alleged breach of this Agreement by Parent and/or Merger Sub of such party occurring prior to the terms or conditions set forth in this AgreementClosing, the Company may, on behalf of the holders of Company Shares, enforce parties agree that any such award and accept damages for such breach, and Parent and Merger Sub agree that such of damages shall not be limited to reimbursement of expenses or out-of-pocket costs, and shall, in addition to any damage to the Company and its Subsidiaries, may include the benefit of the bargain lost by the holders of Company Shares party (taking into consideration all relevant mattersand, including in the loss case of the expected premiumCompany, other combination opportunities and lost by the time value Eligible Holders) seeking such award (i.e., expectancy damages) if a court of money). competent jurisdiction in accordance with Section 9.08 determines appropriate under applicable Law and, if so determined by such a court, shall be recoverable by Purchaser, or by the Company on behalf of the Eligible Holders, as applicable. For purposes of clarification, (ci) The parties acknowledge that if the agreements contained in this Section 7.03 are an integral part of Purchaser does not close the transactions contemplated by this Agreement in circumstances in which all of the closing conditions set forth in Section 7.01 and thatSection 7.02 (other than conditions to be satisfied at the Closing, without these agreementsbut subject to such conditions being capable of being satisfied at the Closing) have been satisfied or waived, such event shall be deemed to be a Material Covenant Breach by the parties would Purchaser of this Agreement and (ii) if the Company does not enter into close the transactions contemplated by this Agreement in circumstances in which all of the closing conditions set forth in Section 7.01 and Section 7.03 (other than conditions to be satisfied at the Closing, but subject to such conditions being capable of being satisfied at the Closing) have been satisfied or waived, such event shall be deemed to be a Material Covenant Breach by the Company of this Agreement. (dii) If this Agreement is terminated pursuant to Section 7.02 hereof 8.06 hereof: (1) all confidential information received by the parties shall be treated in accordance with Section 6.05(c) hereof and the Confidentiality AgreementAgreement referred to in such Section; and (2) all filings, applications and other submissions made pursuant to Sections 6.02, 6.03 and 6.04 hereof shall, to the extent practicable, be withdrawn from the Governmental Authority, agency or other Person to which made.

Effect of Termination; Etc. (a) In the event of the termination of this Agreement in accordance with Section 7.029.01 hereof, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby shall be abandoned, except that this Article VIII, Section 7.03 and Section 5.07, the indemnification and reimbursement obligations of Parent under Section 5.11(a) and Section 5.12(e6.04(c), Section 6.05, and Article VIII X (other than Section 8.17), and any definitional provisions of Article I or otherwise relating to such Sections) and the Confidentiality Agreement shall survive termination of this Agreement and remain valid and binding obligations of each of the partiesparties (in accordance with its terms), and (ii) subject to the terms and conditions of the surviving provisions of this Agreement, there shall be no liability or obligation on the part of Parent, Merger Sub or the Company or of their respective Affiliates or other equityholdersany party hereto. Notwithstanding the immediately preceding sentence of this Section 7.03(a9.02(a), termination of this Agreement pursuant to Section 7.02 9.01 shall not release any party hereto from any liability (x) pursuant to the sections specified in this Section 7.03(a) that survive such termination or Fraud (y) except as expressly provided in any of the provisions that survive such termination, for any Intentional Willful and Material Breach by a party of its representationsany covenant or agreement set forth in this Agreement, warranties, covenants or agreements that occurred prior to such termination. termination (b) a “Pre-Termination Willful and Material Breach”), it being understood that any failure by Purchaser or Merger Sub to consummate the Merger on the date the Closing is required to have occurred in accordance with Section 3.01, shall constitute a Pre-Termination Willful and Material Breach. Notwithstanding anything to the contrary contained herein or otherwise, if a court has determined in the event of any such Pre-Termination Willful and Material Breach, the Parties hereto shall be entitled to grant an award of damages in connection with exercise any breach by Parent and/or Merger Sub of and all remedies available under law or equity, but subject to Section 10.11. (b) Notwithstanding anything else to the terms or conditions set forth contrary in this Agreement, if this Agreement is terminated by the Company maypursuant to Section 9.01(e) or Section 9.01(f), or by either party pursuant to Section 9.01(b) at a time when this Agreement could have been terminated by the Company pursuant to Section 9.01(e) or Section 9.01(f), then Purchaser shall pay or cause to be paid to the Company, within ten (10) Business Days following the date of such termination, $13,380,000 (the “Termination Fee”) by wire transfer of immediately available funds, it being understood that in no event shall Purchaser be required to pay the Termination Fee on behalf more than one occasion. In the event of any dispute regarding the payment of the holders Termination Fee, the prevailing party (as determined pursuant to a final, non-appealable order of Company Shares, enforce a court of competent jurisdiction) in such award and accept damages for such breach, and Parent and Merger Sub agree that such damages dispute shall not be limited entitled to the reimbursement of expenses or its reasonable and documented out-of-pocket costscosts and expenses (including reasonable attorneys’ fees) incurred by such prevailing party in connection with such action from the non-prevailing party (collectively, the “Enforcement Costs”); provided that in no event will the liability of the non-prevailing party with respect to the Enforcement Costs exceed $500,000 in the aggregate. Upon payment of such Termination Fee and Enforcement Costs, if any, none of Purchaser, nor any of Purchaser’s subsidiaries nor any of their respective former, current or future stockholders, directors, officers, Debt Financing Sources, Affiliates or agents (collectively, the “Purchaser Related Parties”) shall have any further liability or obligation to Company, the Equityholders’ Representative or any of the subsidiaries or Affiliates (or any other Person) with respect to (w) any loss suffered, directly or indirectly, as a result of the failure of the transactions contemplated hereby to be consummated, (x) the termination of this Agreement, (y) any liabilities or obligations arising under or relating to this Agreement or the transactions contemplated hereby or (z) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement and the only liability, in the aggregate, of Purchaser shall be the Termination Fee together with Enforcement Costs, if any, and shallin no event shall any of the Company, the Equityholders’ Representative or any of the subsidiaries or Affiliates of the foregoing seek any other recovery, judgment or damages of any kind, including consequential, indirect or punitive damages, against Purchaser or any Purchaser Related Party through Purchaser or otherwise, whether by or through a claim by or on behalf of Purchaser against any Purchaser Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise, whether at law or in equity, in addition contract, in tort or otherwise, except for its rights to any damage recover the Termination Fee and Enforcement Costs, if any, hereunder and to the extent provided in this Section 9.02(b). Notwithstanding anything in this Agreement to the contrary, the Debt Financing Sources shall have no liability or obligation to Purchaser, the Company, the Equityholders’ Representative or any of their respective subsidiaries, Affiliates, directors, officers, employees, partners, managers, members or stockholders or any representative retained by or acting for or on behalf of any of them that relates to or arises out of this Agreement. Notwithstanding anything in this Section 9.02(b) or this Agreement to the contrary, the Company may pursue both a grant of specific performance in accordance with (and its Subsidiaries, include subject to the benefit limitations set forth in Section 10.11) and the payment of the bargain lost by Termination Fee and Enforcement Costs, if any; provided, that under no circumstances shall the holders Company be permitted or entitled to receive both a grant of Company Shares (taking into consideration all relevant matters, including specific performance resulting in the loss Closing and of payment of the expected premiumTermination Fee and Enforcement Costs, other combination opportunities and the time value if any. The Purchaser Related Parties will be third-party beneficiaries of moneythis Section 9.02(b). (c) The parties acknowledge that (i) the agreements contained in this Section 7.03 9.02 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, the parties would not enter into this Agreement. Agreement (dii) If any amounts payable pursuant to this Section 9.02 do not constitute a penalty but rather constitute liquidated damages in reasonable amount intended to compensate the Equityholders and the Company Group for efforts and resources expended and opportunities foregone while negotiating this Agreement is terminated pursuant and the Ancillary Agreements and in reliance on this Agreement and the Ancillary Agreements and the expectation of the consummation of the Closing and the other transactions contemplated hereby and thereby, which amount would otherwise be impossible to Section 7.02 hereof all confidential information received by the parties shall be treated calculate with precision in accordance with the Confidentiality Agreementthose circumstances.

Effect of Termination; Etc. (a) In the event of the termination of this Agreement in accordance with Section 7.02, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby shall be abandoned, except that this Section 7.03 and 7.03, Section 7.04, Section 5.07, the indemnification and reimbursement obligations of Parent under Section 5.11(a) and Section 5.12(e5.10(c), Article VIII (other than Section 8.178.16), the Guarantees and the Confidentiality Agreement Agreements shall survive termination of this Agreement and remain valid and binding obligations of each of the parties, in each case, in accordance with their respective terms, and (ii) subject to the terms and conditions of the surviving provisions of this AgreementAgreement and the Guarantees, there shall be no liability or obligation on the part of Parent, Merger Sub or Sub, the Company or of their respective Affiliates any Parent Related Party or other equityholdersCompany Related Party. Notwithstanding the immediately preceding sentence of this Section 7.03(a)7.03, termination of this Agreement pursuant to Section 7.02 shall not release (x) any party hereto from any liability (x1) pursuant to the sections specified in this Section 7.03(a) 7.03 that survive such termination or (2) for actual fraud or (y) except as expressly provided in any of the provisions that survive such termination, Company for any Intentional Breach by a party material breach of its representations, warranties, covenants or agreements that occurred prior to such termination. (b) . Notwithstanding anything in this Agreement to the contrary contained herein or otherwise, if a court has determined to grant an award of damages in connection with any breach by Parent and/or Merger Sub of the terms or conditions set forth in this Agreementcontrary, the Company may, on behalf shall have no liability to Parent or Merger Sub for any money damages arising out of or relating to the Company’s breach or violation of this Agreement (other than an Intentional Breach) in excess of an amount equal to the amount of the holders of Company SharesParent Termination Fee, enforce such award and accept damages for such breachwhether at law or in equity, and Parent and Merger Sub agree that such damages shall not be limited to reimbursement of expenses whether in contract, tort or out-of-pocket costs, and shall, in addition to any damage to the Company and its Subsidiaries, include the benefit of the bargain lost by the holders of Company Shares otherwise (taking into consideration all relevant matters, including the loss of the expected premium, other combination opportunities and the time value of moneythan actual fraud). (c) The parties acknowledge that the agreements contained . Nothing in this Section 7.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement. (d) If this Agreement is terminated shall be construed to limit Parent’s obligations pursuant to Section 7.02 hereof all confidential information received by the parties shall be treated in accordance with the Confidentiality Agreement7.04.

Effect of Termination; Etc. (a) In the event of the termination of this Agreement in accordance with Section 7.028.06 hereof, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby shall be abandoned, except that this Section 7.03 8.07 and Section 5.07, the indemnification and reimbursement obligations of Parent under Section 5.11(a) and Section 5.12(e)6.06, Article VIII IX (other than Section 8.17), 9.17) and the Confidentiality Agreement shall survive termination of this Agreement and remain valid and binding obligations of each of the parties, and (ii) subject to the terms and conditions of the surviving provisions of this Agreement, there shall be no liability or obligation on the part of Parent, Merger Sub or the Company or of their respective Affiliates or other equityholdersany party hereto. Notwithstanding the immediately preceding sentence of this Section 7.03(a8.07(a), termination of this Agreement pursuant to Section 7.02 8.06 shall not release any party hereto from any liability (x) pursuant to the sections specified in this Section 7.03(a8.07(a) that survive such termination or (y) except as expressly provided in any of the provisions that survive such termination, for (A) any Intentional Breach intentional and material breach by a party of its representationsrepresentations and warranties under this Agreement or (B) any material breach by a party of its covenants and agreements under this Agreement taken with knowledge that such action or inaction was in material breach of this Agreement, warranties, covenants or agreements in each case that occurred prior to such termination. termination (bthe breach described in this clause (B), a “Material Covenant Breach”). Nothing in this Section 8.07(a) shall limit the right of any party hereto to bring or maintain any action (i) for injunction, specific enforcement of the obligations of Purchaser, the Merger Sub or the Company or any other party under this Agreement, or other equitable relief as provided in Section 9.12 or (ii) arising out of or in connection with any breach of the Confidentiality Agreement. Notwithstanding anything to the contrary contained herein or otherwisein this Agreement, if a court has determined to grant an award of damages in connection with is sought against any party hereto for any alleged breach of this Agreement by Parent and/or Merger Sub of such party occurring prior to the terms or conditions set forth in this AgreementClosing, the Company may, on behalf of the holders of Company Shares, enforce parties agree that any such award and accept damages for such breach, and Parent and Merger Sub agree that such of damages shall not be limited to reimbursement of expenses or out-of-pocket costs, and shall, in addition to any damage to the Company and its Subsidiaries, may include the benefit of the bargain lost by the holders of Company Shares party (taking into consideration all relevant mattersand, including in the loss case of the expected premiumCompany, other combination opportunities and lost by the time value Eligible Holders) seeking such award (i.e., expectancy damages) if a court of money). competent jurisdiction in accordance with Section 9.08 determines appropriate under applicable Law and, if so determined by such a court, shall be recoverable by Purchaser, or by the Company on behalf of the Eligible Holders, as applicable. For purposes of clarification, (ci) The parties acknowledge that if the agreements contained in this Section 7.03 are an integral part of Purchaser does not close the transactions contemplated by this Agreement in circumstances in which all of the closing conditions set forth in Section 7.01 and thatSection 7.02 (other than conditions to be satisfied at the Closing, without these agreementsbut subject to such conditions being capable of being satisfied at the Closing) have been satisfied or waived, such event shall be deemed to be a Material Covenant Breach by the parties would Purchaser of this Agreement and (ii) if the Company does not enter into close the transactions contemplated by this Agreement in circumstances in which all of the closing conditions set forth in Section 7.01 and Section 7.03 (other than conditions to be satisfied at the Closing, but subject to such conditions being capable of being satisfied at the Closing) have been satisfied or waived, such event shall be deemed to be a Material Covenant Breach by the Company of this Agreement. (db) If this Agreement is terminated pursuant to Section 7.02 hereof 8.06 hereof: (i) all confidential information received by the parties shall be treated in accordance with Section 6.05(c) hereof and the Confidentiality AgreementAgreement referred to in such Section; and (ii) all filings, applications and other submissions made pursuant to Sections 6.02, 6.03 and 6.04 hereof shall, to the extent practicable, be withdrawn from the Governmental Authority, agency or other Person to which made.

Effect of Termination; Etc. (a) In the event of the termination of this Agreement in accordance with Section 7.02, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby shall be abandoned, except that this Section 7.03 and 7.03, Section 5.075.08, Article VIII, the indemnification and reimbursement obligations in respect of Parent under the Escrow Funds set forth in Section 5.11(a) and Section 5.12(e), Article VIII (other than Section 8.17), 2.04 and the Confidentiality Agreement shall survive termination of this Agreement and remain valid and binding obligations of each of the partiesParties, and (ii) subject to the terms and conditions of the surviving provisions of this Agreement, there shall be no liability or obligation on the part of Parent, Merger Sub the Buyer or the Company Sellers under or in connection with this Agreement or any of their respective Affiliates the transactions contemplated hereby, or other equityholdersin connection with the termination hereof. Notwithstanding anything in the immediately preceding sentence of this Section 7.03(a)) to the contrary, termination of this Agreement pursuant to Section 7.02 shall not release any party hereto Party from any liability Liability (xA) pursuant to the sections specified above in this Section 7.03(a) that survive such termination termination, (B) for an Intentional Breach of this Agreement, or (yC) except as expressly provided in any of the provisions that survive such termination, for any Intentional Breach by a party of its representations, warranties, covenants or agreements that occurred prior to such terminationFraud. (b) Notwithstanding anything If this Agreement is terminated by Sellers pursuant to Section 7.02(f), then Sellers shall pay, or cause to be paid, to Buyer the sum of (i) an amount equal to two percent (2%) of the Purchase Price, (ii) the Extension Amount, if previously paid to the contrary contained herein or otherwise, if a court has determined to grant an award of damages in connection with any breach by Parent and/or Merger Sub of the terms or conditions set forth in this Agreement, the Company may, on behalf of the holders of Company Shares, enforce such award and accept damages for such breachCompany, and Parent (iii) an aggregate amount sufficient to pay or reimburse the Buyer for its reasonable and Merger Sub agree that such damages shall not be limited to reimbursement of expenses or documented out-of-pocket costscosts and expenses incurred by the Buyer or any of its Affiliates in connection with this Agreement or the Related Agreements and the transactions contemplated hereby and thereby in an amount not to exceed one-half of one percent (0.5%) of the Purchase Price (such sum, collectively, the “Termination Fee and shallExpenses Amounts”), no later than three (3) Business Days after the date upon which Sellers consummate such Alternative Transaction. For the avoidance of doubt, the covenants set forth in addition to this Section 7.03(b) are continuing obligations, separate and independent from the other obligations of the Parties (and shall not limit any damage to of the Company Parties’ other rights and remedies under or in respect of this Agreement) and shall survive termination of this Agreement. Each of the Parties (on behalf of itself and its SubsidiariesAffiliates) acknowledges and agrees that following any termination of this Agreement in circumstances under which the Sellers are required to pay the Termination Fee and Expenses Amounts, include the benefit Sellers’ payment of the bargain lost by Termination Fee and Expenses Amounts (if any) shall constitute the holders of Company Shares (taking into consideration all relevant matters, including the loss sole and exclusive remedy of the expected premiumBuyer. Nothing contained in this Section 7.03(b) shall prevent, other combination opportunities limit, impede or otherwise impair the ability of the Buyer to seek, enforce or otherwise pursue any remedy available to it pursuant to Section 8.13 at any time prior to termination of this Agreement pursuant to Section 7.02, it being understood that the Buyer shall not be permitted or entitled to receive both (but may seek both in the alternative) a grant of specific performance that results in a Closing and payment of the time value of money)Termination Fee and Expenses Amounts. The Parties acknowledge and agree that in no event shall the Sellers be required to pay the Termination Fee and Expenses Amounts on more than one occasion. (c) The parties acknowledge Each of the Parties acknowledges that the agreements contained in this Section 7.03 are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, the parties other Parties would not enter into this Agreement. (d) If this Agreement is terminated pursuant to Section 7.02 hereof all confidential information received by the parties shall be treated in accordance with the Confidentiality Agreement.

Effect of Termination; Etc. (a) In the event of the termination of If this Agreement is terminated in accordance with Section 7.028.01, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby Transactions shall be abandoned, and there shall be no liability or obligation on the part of Parent, Merger Sub, the Company or the Stockholders’ Representative except (i) that this Section 7.03 and Article I, Section 5.07, the indemnification and reimbursement obligations of Parent under Section 5.11(a) and Section 5.12(e5.15(e), this Section 8.02, Article VIII IX (other than Section 8.17), 9.12) and the Confidentiality Agreement shall survive termination of this Agreement and remain valid and binding obligations of each of the parties, parties hereto and thereto and (ii) subject to the terms and conditions of the surviving provisions of this Agreement, there shall be no liability or obligation on the part of Parent, Merger Sub or the Company or of their respective Affiliates or other equityholders. Notwithstanding the immediately preceding sentence of this Section 7.03(a), that termination of this Agreement pursuant to Section 7.02 8.01 shall not release (x) any party hereto from any liability (x) pursuant for any liabilities or damages incurred or suffered by another party, to the sections specified extent such liabilities or damages were the result of Actual Fraud or the knowing and intentional breach by such party of any of its representations, warranties or covenants set forth in this Section 7.03(a) that survive such termination Agreement or (y) except Parent from any obligation to pay the Termination Fee in accordance with this Section 8.02. For purposes of this Agreement, “knowing and intentional breach” shall mean a material breach that is a consequence of an omission by, an act undertaken by or caused by, or a breach of a representation or warranty by the breaching party with the actual knowledge that the omission, the taking or causing of such act or the making of such representation or warranty would cause a breach of this Agreement. If the sole reason that Parent and Merger Sub fail to fulfill their obligation to consummate the transactions contemplated by this Agreement on the date the Closing is required to occur pursuant to Section 2.02 is due to a Financing Failure, such failure to consummate the transactions contemplated by this Agreement on such date shall not be deemed to be a knowing and intentional breach of this Agreement. If Parent and Merger Sub fail to fulfill their obligations to consummate the transactions contemplated by this Agreement on the date the Closing is required to occur pursuant to Section 2.02 other than as expressly provided in any a result of a Financing Failure, such failure to consummate the provisions that survive transactions contemplated by this Agreement on such date shall be deemed to be a knowing and intentional breach of this Agreement. (b) If this Agreement is terminated (i) by the Company pursuant to Section 8.01(f) or (ii) by Parent pursuant to Section 8.01(b) and, at the time of such termination, for this Agreement could have been terminated by the Company pursuant to Section 8.01(f) (notwithstanding any Intentional Breach by a party of advance notice requirements set forth in such section), then Parent shall pay to the Company (or its representations, warranties, covenants or agreements that occurred prior to designees) the Termination Fee as soon as practicable (but in any case no later than two Business Days) following any such termination. (bc) If Parent fails to pay the Termination Fee when due, then interest shall accrue on the amount of such Termination Fee from (and including) the date of termination of this Agreement to the date of payment at the “prime rate” at large U.S. money center banks in effect on the date such payment was required to be made (as published by The Wall Street Journal) per annum, compounded quarterly. (d) If Parent pays the Termination Fee when due, such Termination Fee will be considered liquidated damages for any breach by Parent or Merger Sub of this Agreement that will fairly compensate the Company for the efforts and resources expended and opportunities foregone, which amount would otherwise be impossible to calculate with precision and that, if paid pursuant to Section 8.02, shall be in full and complete satisfaction of any and all damages and liability arising as a result of any termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, in the event of a Specified Termination, the Company’s right to receive payment of the Termination Fee pursuant to Section 8.02 (together with any interest due thereon pursuant to Section 8.02(c)) shall be the sole and exclusive remedy of the Company and any Company Related Party for any Loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Merger to be consummated, or in respect of any oral representation made or alleged to be have been made in connection herewith, and all other rights or claims of the Company or any Company Related Party, arising out of this Agreement, the Transactions or the Financing, or the failure of any of the foregoing to be consummated, whether at Law or in equity, on any theory of liability, including in contract, tort or otherwise, against Parent, Merger Sub, all Parent Related Parties and any Financing Sources are hereby deemed waived (except for Parent’s obligation to reimburse the costs and expenses specified in and pursuant to Section 5.15(e)). (e) Notwithstanding anything in this Agreement to the contrary contained herein contrary, upon payment of the Termination Fee (together with any interest due thereon pursuant to Section 8.02(c)) following a Specified Termination, none of Parent, Merger Sub, any Parent Related Party or any Financing Sources shall have any further liability or obligation to the Company or any Company Related Party relating to or arising out of this Agreement, the Transactions or the Financing, or the failure of any of the foregoing to be consummated, in each case whether based on contract (including the Debt Commitment Letter (or Alternate Debt Commitment Letter, as applicable), this Agreement or otherwise), tort or otherwise, by enforcement of any assessment, by any legal, equitable or arbitral proceeding, by virtue of any statute, regulation or applicable Law or otherwise and whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of a party hereto or another Person (except for Parent’s obligation to reimburse the costs and expenses specified in and pursuant to Section 5.15(e)). In no circumstances will Parent be required to (x) pay the Termination Fee more than once, or (y) pay any amount of damages in excess of the Termination Fee if the Company has received the Termination Fee in connection with a Specified Termination. (f) Notwithstanding anything herein to the contrary, if a court has determined to grant an award of damages in connection with any for a knowing and intentional breach of this Agreement by Parent and/or or Merger Sub of the terms or conditions set forth in this AgreementSub, the Company may, on behalf of the holders of Company Shares, enforce such award and accept damages for such breach, and Parent and Merger Sub agree that (i) such damages shall not be limited to reimbursement of expenses or out-of-pocket costs, costs and shall, in addition to any damage to the Company and or any of its Subsidiaries, include damages resulting from the benefit of the bargain lost by the holders of Company Shares Securityholders (taking into consideration all relevant matters, including the loss of the expected premium, other combination opportunities and the time value of money). , and (cii) the Company may assign or transfer all right, title and interest to, or direct Parent and Merger Sub to make payment of, all or any portion of such award to the Securityholders. The parties hereto acknowledge and agree that the agreements contained nothing in this Section 7.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement. (d8.02(f) If this Agreement is terminated pursuant to Section 7.02 hereof all confidential information received by the parties shall be treated in accordance with the Confidentiality Agreementdeemed to affect their right to specific performance under Section 9.11.

Effect of Termination; Etc. (a) In the event of the termination of this Agreement in accordance with Section 7.028.02, (i) this Agreement shall thereafter become void and have no effect and the transactions contemplated hereby shall be abandoned, except that this Section 7.03 and 8.03, Section 5.07, the indemnification and reimbursement obligations of Parent under Section 5.11(a) and Section 5.12(e6.09 (Public Statements), Section 6.12(e) (Financial Cooperation), relevant defined terms in Article VIII I, Article IX (other than Section 8.179.16 (Waiver of Conflicts), ) and the Confidentiality Agreement shall survive termination of this Agreement and remain valid and binding obligations of each of the parties, and (ii) subject to the terms and conditions of the surviving provisions of this Agreement, there shall be no liability or obligation on the part of Parent, Merger Sub 1, Merger Sub 2, the Blocker or the Company or of their respective Affiliates or other equityholdersCompany. Notwithstanding anything to the immediately preceding sentence of contrary in this Section 7.03(a)Agreement, termination of this Agreement pursuant to Section 7.02 8.02 shall not release any party hereto from any liability (x) pursuant to the sections specified in this Section 7.03(a) that survive such termination or (y) except as expressly provided in any of the provisions 8.03 that survive such termination, or (y) for any Intentional Breach by a party of its representations, warranties, covenants or agreements that occurred prior to such termination, except as otherwise provided in Sections 8.03(b) or Section 8.03(c). (b) Notwithstanding anything If the Company validly terminates this Agreement pursuant to Section 8.02(g), then the Company may elect, by delivery of a written notice to Parent within five (5) Business Days after such termination, (i) that Parent pay to the contrary contained herein or otherwiseCompany an amount in cash equal to $200,000,000 (the “Financing Reverse Termination Fee”), if a court has determined in which case Parent shall make such payment as promptly as reasonably practicable (and in any event within three (3) Business Days) after receipt of such notice, by wire transfer of immediately available funds to grant an award the account designated in writing by the Company in such notice, and upon receipt thereof the Company shall be deemed, including on behalf of damages the Blocker and the holders of equity interests in connection with any breach by Parent and/or the Blocker and the Company, to have irrevocably waived the right under this Agreement to claim that Parent, Merger Sub 1 or Merger Sub 2 has committed an Intentional Breach of the terms any representation, warranty, covenant or conditions set forth agreement in this Agreement, or, alternatively, (ii) that Parent not pay to the Company maysuch Financing Reverse Termination Fee, in which case the Company shall be deemed, including on behalf of the holders of Company Shares, enforce such award Blocker and accept damages for such breach, and Parent and Merger Sub agree that such damages shall not be limited to reimbursement of expenses or out-of-pocket costs, and shall, in addition to any damage to the Company and its Subsidiaries, include the benefit of the bargain lost by the holders of Company Shares (taking into consideration all relevant matters, including equity interests in the loss of the expected premium, other combination opportunities Blocker and the time value of moneyCompany, to have irrevocably waived such Financing Reverse Termination Fee. In the event that the Company makes neither election within such five (5) Business Day period described in the immediately preceding sentence, the Company shall be deemed to have made the election in clause (ii). In no event shall Parent be required to pay the Financing Reverse Termination Fee on more than one occasion and in no event shall Parent be required to pay the Financing Reverse Termination Fee if the Regulatory Reverse Termination Fee has already been paid. (c) The In the event that (a) this Agreement has been validly terminated by either the Company or Parent pursuant to Section 8.02(b), Section 8.02(c) or, as a result of a material breach under Section 6.06, Section 8.02(e), and (b) the condition set forth in Section 7.01(b), Section 7.01(c) or, in the case of any Restraint imposed or any action or proceeding brought by any Governmental Authority in respect of or under any Antitrust Law or Health Regulatory Law, Section 7.01(a) has not been satisfied as of the date of such termination but all conditions to Closing set forth in Section 7.01 and Section 7.02 (other than Section 7.01(a), Section 7.01(b) and Section 7.01(c)) shall otherwise have been satisfied (other than those conditions that by their nature are to be satisfied at Closing, but which conditions would have been satisfied if the Closing Date were the date of such termination), then the Company may elect, by delivery of a written notice to Parent within five (5) Business Days after such termination, (i) that Parent pay to the Company an amount in cash equal to $60,000,000 (the “Regulatory Reverse Termination Fee”), in which case Parent shall make such payment as promptly as reasonably practicable (and in any event within three (3) Business Days) after receipt of such notice, by wire transfer of immediately available funds to the account designated in writing by the Company in such notice, and upon receipt thereof the Company shall be deemed, including on behalf of the Blocker and the holders of equity interests in the Blocker and the Company, to have irrevocably waived the right under this Agreement to claim that Parent, Merger Sub 1 or Merger Sub 2 has committed an Intentional Breach of any representation, warranty, covenant or agreement in this Agreement, or, alternatively, (ii) that Parent not pay to the Company such Regulatory Reverse Termination Fee, in which case the Company shall be deemed, including on behalf of the Blocker and the holders of equity interests in the Blocker and the Company, to have irrevocably waived such Regulatory Reverse Termination Fee. In the event that the Company makes neither election within such five (5) Business Day period described in the immediately preceding sentence, the Company shall be deemed to have made the election in clause (ii). In no event shall Parent be required to pay the Regulatory Reverse Termination Fee on more than one occasion or be required to pay both the Regulatory Reverse Termination Fee and the Financing Reverse Termination Fee. (d) Each of the parties acknowledge acknowledges that the agreements contained in this Section 7.03 8.03 are an integral part of the transactions contemplated by this Agreement and that, without these agreementsthe Financing Reverse Termination Fee or the Regulatory Reverse Termination Fee and the other provisions of this Section 8.03, the Company would not have entered into this Agreement; and that the payment of the Financing Reverse Termination Fee or the Regulatory Reverse Termination Fee, in circumstances in which it is paid, is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Blocker and the Company and their respective Affiliates under the circumstances for losses or damages (other than any losses or damages incurred as a result of an Intentional Breach by Parent, Merger Sub 1 or Merger Sub 2) suffered or incurred by the Blocker and the Company and their respective Affiliates in connection with this Agreement, the Debt Commitment Letter, the transactions contemplated by this Agreement (and the abandonment or termination thereof) or any matter forming the basis for such termination. (e) Notwithstanding anything to the contrary in this Agreement, in the event that any action, suit or proceeding is commenced or instituted by the Company in respect of the Financing Reverse Termination Fee or a claim for specific performance of Parent’s obligations as contemplated by Section 9.13, during the pendency of such proceeding and, if a court of competent jurisdiction has ordered Parent to pay the Financing Reverse Termination Fee and/or to consummate the transactions contemplated by this Agreement, until two (2) Business Days following such order, Parent may at any time notify the Company in writing that it will consummate the Closing within five (5) Business Days following such notice, in which case the parties shall consummate the Closing and neither the Blocker nor the Company shall be permitted or entitled to enforce such order during such five (5) Business Day period (and, if the Closing is not consummated, the Company shall be entitled to continue to pursue such action or to enforce such order, as applicable, following such five (5) Business Day period). For the avoidance of doubt, the parties would not enter into this Agreementacknowledge that neither the Blocker nor the Company shall seek to enforce any such order for payment of the Financing Reverse Termination Fee during the two (2) Business Day period following such order or in the event the Closing is consummated. (df) Notwithstanding anything to the contrary in this Agreement, but subject to the limited rights to specific performance of the Company to the extent set forth in Section 9.13 and except in the case of Intentional Breach, the Company’s right to receive payment of the Financing Reverse Termination Fee or the Regulatory Reverse Termination Fee from Parent pursuant to (and to the extent set forth in) this Section 8.03 shall be the sole and exclusive remedy of the Blocker, the Company and their respective Affiliates against Parent, Merger Sub 1 and Merger Sub 2 and their respective former, current, or future direct or indirect general or limited partners, equityholders, stockholders, controlling persons, managers, members, directors, officers, employees, Affiliates, subsidiaries, portfolio companies, attorneys and other representatives, the Financing Sources, and their respective successors, assignees and agents, and any former, current, or future direct or indirect general or limited partners, equityholders, stockholders, controlling persons, managers, members, directors, officers, employees, Affiliates, subsidiaries, portfolio companies, attorneys and other representatives of any of the foregoing, and their respective successors, assignees and agents (each, a “Parent Related Party” and, collectively, the “Parent Related Parties”) for any breach, loss or damage suffered as a result of the failure of the Closing to be consummated or for a breach or failure to perform hereunder or otherwise. Under no circumstances shall the Blocker, the Company, their respective members or any of their respective Affiliates be permitted or entitled to pursue or receive both a grant of specific performance and any money damages, including all or any portion of the Financing Reverse Termination Fee or the Regulatory Reverse Termination Fee. If the Company elects to receive the Financing Reverse Termination Fee or Regulatory Reverse Termination Fee pursuant to Sections 8.03(b) or Section 8.03(c), upon termination of this Agreement is terminated and payment of the Financing Reverse Termination Fee or Regulatory Reverse Termination Fee pursuant to Sections 8.03(b) or Section 7.02 hereof all confidential information received 8.03(c), none of the Parent Related Parties shall have any further liability to the Blocker, the Company or their respective members or any of their respective Affiliates relating to or arising out of this Agreement or the Debt Financing or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, based on contract, tort or strict liability, by the parties shall be treated enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Laws or otherwise and whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of a party hereto or another Person or otherwise. (g) Notwithstanding anything in accordance this Agreement to the contrary, the Blocker, the Company (and their respective stockholders, members, Affiliates, directors, officers, employees, representatives and agents, excluding, in the event the Mergers are consummated, Parent or any Subsidiary) hereby waive any and all rights and claims against any Financing Source and any of their Affiliates, and any of such entities’ or Affiliates’ respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, employees, representatives or agents related to, arising out of or in connection with the Confidentiality AgreementAgreement or the Debt Financing, whether at law or equity, in contract, tort or otherwise.