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

Effect of Termination; Termination Fees. (a) In the event that this Agreement is terminated as provided in Section 9.1, then this Agreement shall forthwith become null and void and of no further force and effect (except for the provisions of Section 6.4(e), this Section 9.3, Article X, Section 11.3, Section 11.5, Section 11.6 and Exhibit A) and each of the Parties shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and the Parties shall have no further Liability hereunder (except pursuant to Section 6.4(e), this Section 9.3 and Section 11.6); provided, subject to Section 9.3(d), that nothing in this Section 9.3 shall relieve Sellers of any Liability for fraud or a willful breach of this Agreement. (b) In the event that this Agreement is terminated by the Major Sellers pursuant to Section 9.1(d) or Section 9.1(e), or is terminated by the Major Sellers or Acquirors pursuant to Section 9.1(f) at a time when Sellers could have terminated the Agreement pursuant to Section 9.1(d) or Section 9.1(e), then, in any such case, Acquirors shall promptly, but in no event later than ten Business Days after the date of such termination, pay or cause to be paid to Sellers or their designee an amount in cash equal to $164,643,001 (the “Reverse Termination Fee”) by wire transfer of immediately available funds to one or more accounts designated by Sellers in writing. (c) It is agreed that the Reverse Termination Fee is an integral part of this Agreement and without the Reverse Termination Fee, Acquirors and Sellers would not have entered into this Agreement. The Reverse Termination Fee is intended to be liquidated damages (and not a penalty). Accordingly, if Acquirors fail to pay the Reverse Termination Fee pursuant to Section 9.3(b) on or prior to the date such amounts are due hereunder, and, in order to obtain such payment, Sellers commence a Proceeding that results in a final, nonappealable judgment against Acquirors for the payment of the Reverse Termination Fee pursuant to Section 9.3(b), Acquirors shall pay, or cause to be paid, to Sellers, interest on such amount at an annual rate equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date such amounts were originally due hereunder which shall accrue from such date through the date such payment is actually delivered to Sellers or their designee, and the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Sellers in connection with such Proceeding. (d) The Parties agree that the monetary remedies set forth in Section 9.3(b) (when and if available under the express terms hereof) and the specific performance remedies set forth in Section 11.6 shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise, whether by or through piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Person) of Sellers and any of their respective former, current and future Affiliates (which, for the purposes of this Section 9.3(d), shall be deemed to include the TGE Entities), each of their former, current and future partners, members, equityholders and Representatives, and each of their respective heirs, executors, administrators, successors and assigns, for any Losses or Liabilities suffered or incurred by any such Person with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby as a result of the failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any or no reason or, in the event of a failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any reason or for no reason, for any breach by any Acquiror of this Agreement. Without limiting the rights of Acquirors under the Debt Commitment Papers, upon the payment of the Reverse Termination Fee following a failure of the Closing to occur or the transactions contemplated by the Transactions to be consummated, no Acquiror, Acquiror Non-Recourse Party or Financing Source shall have any liability or obligation in connection with, relating to or arising out of this Agreement, the Transaction Documents or the transactions contemplated hereby and thereby. Under no circumstance shall any Person be permitted or entitled both to obtain specific performance pursuant to Section 11.6 and to receive all or any portion of the Reverse Termination Fee.

Effect of Termination; Termination Fees. (a) In the event that this Agreement is terminated as provided in Section 9.1, then this Agreement shall forthwith become null and void and of no further force and effect (except for the provisions of Section 6.4(e), this Section 9.3, Article X, Section 11.3, Section 11.5, Section 11.6 and Exhibit A) and each of the Parties shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and the Parties shall have no further Liability hereunder (except pursuant to Section 6.4(e), this Section 9.3 and Section 11.6); provided, (subject to Section 9.3(d), ) that nothing in this Section 9.3 shall relieve Sellers Seller of any Liability for fraud or a willful breach of this Agreement. (b) In the event that this Agreement is terminated by the Major Sellers Seller pursuant to Section 9.1(d) or Section 9.1(e), or is terminated by the Major Sellers Seller or Acquirors Acquiror pursuant to Section 9.1(f9.1(e) at a time when Sellers Seller could have terminated the Agreement pursuant to Section 9.1(d) or Section 9.1(e), then, in any such case, Acquirors Acquiror shall promptly, but in no event later than ten Business Days after the date of such termination, pay or cause to be paid to Sellers or their designee Seller an amount in cash equal to $164,643,001 12,500,000 (the “Reverse Termination Fee”) by wire transfer of immediately available funds to one or more accounts designated by Sellers Seller in writing. (c) It is agreed that the Reverse Termination Fee is an integral part of this Agreement and without the Reverse Termination Fee, Acquirors Acquiror and Sellers Seller would not have entered into this Agreement. The Reverse Termination Fee is intended to be liquidated damages (and not a penalty). Accordingly, if Acquirors Acquiror fail to pay the Reverse Termination Fee pursuant to Section 9.3(b) on or prior to the date such amounts are due hereunder, and, in order to obtain such payment, Sellers commence Seller commences a Proceeding that results in a final, nonappealable judgment against Acquirors Acquiror for the payment of the Reverse Termination Fee pursuant to Section 9.3(b), Acquirors Acquiror shall pay, or cause to be paid, to SellersSeller, interest on such amount at an annual rate equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date such amounts were originally due hereunder which shall accrue from such date through the date such payment is actually delivered to Sellers or their designeeSeller, and the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Sellers Seller in connection with such Proceeding. (d) The Parties agree that the monetary remedies set forth in Section 9.3(b) (when and if available under the express terms hereof) and the specific performance remedies set forth in Section 11.6 shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise, whether by or through piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Person) of Sellers Seller and any of their its respective former, current and future Affiliates (which, for the purposes of this Section 9.3(d), shall be deemed to include the TGE SRLP Entities), each of their former, current and future partners, members, equityholders and Representatives, and each of their respective heirs, executors, administrators, successors and assigns, for any Losses or Liabilities suffered or incurred by any such Person with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby as a result of the failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any or no reason or, in the event of a failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any reason or for no reason, for any breach by any Acquiror of this Agreement. Without limiting the rights of Acquirors under the Debt Commitment Papers, upon the payment of the Reverse Termination Fee following a failure of the Closing to occur or the transactions contemplated by the Transactions to be consummated, no Acquiror, Acquiror Non-Recourse Party or Financing Source shall have any liability or obligation in connection with, relating to or arising out of this Agreement, the Transaction Documents or the transactions contemplated hereby and thereby. Under no circumstance shall any Person be permitted or entitled both to obtain specific performance pursuant to Section 11.6 and to receive all or any portion of the Reverse Termination Fee.

Effect of Termination; Termination Fees. (a) Each party’s right of termination under Section 10.1 is in addition to any other right it may have under this Agreement or otherwise, and the exercise of a party’s right of termination will not constitute an election of remedies. If this Agreement is terminated pursuant to Section 10.1, this Agreement will be of no further force or effect; provided, however, that (i) this Section 10.2, Section 10.3 and Article 12 will survive the termination of this Agreement and will remain in full force and effect, and (ii) the termination of this Agreement will not relieve any party from any liability for any Breach of this Agreement occurring prior to termination. (b) If Merger Corp terminates this Agreement pursuant to Section 10.1(d)(i), 10.1(d)(ii), or 10.1(d)(iv), or if the Company terminates this Agreement pursuant to Section 10.1(c)(ii), the Company shall pay to Merger Corp, as its exclusive remedy hereunder, cash in an amount equal to a fee in the amount of three percent (3%) of the Merger Consideration (the “Termination Fee”). Such payment shall be made via wire transfer of immediately available funds to an account designated by Merger Corp on the earlier of (i) thirty (30) days after the effective date of the termination by Merger Corp, or (ii) the execution by the Company of a definitive agreement with respect to any Acquisition Proposal. (c) If this Agreement is terminated pursuant to Section 10.1(b)(i), 10.1(b)(iii) or 10.1(d)(iii) and (i) prior to such termination (in the case of termination pursuant to Section 10.1(b)(i) or 10.1(d)(iii)) or prior to obtaining the required approval of the Shareholders (in the case of termination pursuant to Section 10.1(b)(iii)), an Acquisition Proposal shall have been publicly announced and not publicly withdrawn, and (ii) within twelve (12) months following the date of such termination the Company shall have (A) entered into a definitive agreement with respect to, (B) recommended to its shareholders or (C) consummated, a transaction contemplated by such Acquisition Proposal, then the Company shall pay to Merger Corp (by wire transfer of immediately available funds), within two (2) Business Days after entering into such definitive agreement, making such recommendation or consummating such transaction, the Termination Fee. (d) In the event that this Agreement is terminated as provided in Section 9.1, then this Agreement shall forthwith become null and void and of no further force and effect (except for the provisions of Section 6.4(e), this Section 9.3, Article X, Section 11.3, Section 11.5, Section 11.6 and Exhibit A) and each of the Parties shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and the Parties shall have no further Liability hereunder (except pursuant to Section 6.4(e10.1(b)(i), this Section 9.3 and Section 11.6); provided, subject to Section 9.3(d), that nothing in this Section 9.3 shall relieve Sellers of any Liability for fraud or a willful breach of this Agreement. (b) In the event that this Agreement is terminated by the Major Sellers pursuant to Section 9.1(d) or Section 9.1(e10.1(b)(iii), or is terminated by the Major Sellers or Acquirors pursuant to Section 9.1(f) at a time when Sellers could have terminated the Agreement pursuant to Section 9.1(d) or Section 9.1(e10.1(d)(iii), then, the Company shall as promptly as possible (but in any such case, Acquirors shall promptly, but event within two (2) Business Days) following receipt of an invoice therefor pay all of Merger Corp’s documented reasonable out-of-pocket fees and expenses (including reasonable legal and other third party advisors fees and expenses) actually incurred by Merger Corp and its affiliates on or prior to the termination of this Agreement in no event later than ten Business Days after connection with the date of such termination, pay or cause to be paid to Sellers or their designee an amount in cash equal to $164,643,001 transactions contemplated by this Agreement (the “Reverse Termination FeeMerger Corp Expenses”) as directed by wire transfer of immediately available funds to one or more accounts designated by Sellers Merger Corp in writing. (c) It is agreed ; provided that the Reverse Termination Fee is an integral part amount of any payment of the Merger Corp Expenses pursuant to this Agreement and without Section 10.2(d) shall be credited against any obligation of the Reverse Termination Fee, Acquirors and Sellers would not have entered into this Agreement. The Reverse Termination Fee is intended to be liquidated damages (and not a penalty). Accordingly, if Acquirors fail Company to pay the Reverse Termination Fee pursuant to Section 9.3(b10.2(b) on or prior 10.2(c). In addition, the amount of any payment received by Stonehenge Partners, Inc. pursuant to that certain Escrow Agreement by and among Stonehenge Partners, Inc., the date such amounts are due hereunderCompany, andand Mercantile Title Agency, in order to obtain such paymentInc. dated January 21, Sellers commence a Proceeding that results in a final, nonappealable judgment 2011 shall be credited against Acquirors for the payment any obligation of the Reverse Termination Fee Company to pay the Merger Corp Expenses pursuant to this Section 9.3(b10.2(d). (e) The Company acknowledges that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated by this Agreement, and that without these agreements, Merger Corp would not enter into this Agreement. Accordingly, if the Company fails to pay any amount due to Merger Corp pursuant to this Section 10.2, when held by a court of competent jurisdiction or otherwise agreed to have been due, the Company shall pay the costs and expenses (including legal fees and expenses) in connection with any action taken to collect payment (including the prosecution of any lawsuit or other legal action), Acquirors shall pay, or cause to be paid, to Sellers, together with interest on such the unpaid amount at an annual rate equal to the prime rate of interest as published in the Wall Street Journal, Eastern Edition, in effect on Journal from the date such amounts were originally due hereunder which shall accrue from such date through amount was first payable to the date such payment it is actually delivered to Sellers or their designee, and the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Sellers in connection with such Proceedingpaid. (df) The Parties agree Merger Corp acknowledges and agrees that the monetary remedies Termination Fee contemplated by this Section 10.2 shall be payable by the Company on only one occasion, whether or not the facts or circumstances giving rise to the Company’s obligation to pay the Termination Fee may otherwise trigger an obligation to pay the Termination Fee under more than one subsection of this Section 10.2 or on more than one occasion pursuant to the same subsection of this Section 10.2 (g) Except as set forth in Section 9.3(b10.2(b) above, nothing hereunder shall limit or otherwise prejudice any rights or claims that any party hereto may have, and any party may pursue all legal remedies to which such party may be entitled a law or in equity (when and if available including specific performance) under this Agreement or otherwise in addition to the express terms hereof) and the specific performance remedies set forth in Section 11.6 shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise, whether by or through piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Person) of Sellers and any of their respective former, current and future Affiliates (which, for the purposes of this Section 9.3(d), shall be deemed to include the TGE Entities), each of their former, current and future partners, members, equityholders and Representatives, and each of their respective heirs, executors, administrators, successors and assigns, for any Losses or Liabilities suffered or incurred by any such Person with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby as a result of the failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any or no reason or, in the event of a failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any reason or for no reason, for any breach by any Acquiror of this Agreement. Without limiting the rights of Acquirors under the Debt Commitment Papers, upon the payment of the Reverse Termination Fee following a failure of the Closing to occur or the transactions contemplated by the Transactions to be consummated, no Acquiror, Acquiror Non-Recourse Party or Financing Source shall have any liability or obligation in connection with, relating to or arising out of this Agreement, the Transaction Documents or the transactions contemplated hereby and thereby. Under no circumstance shall any Person be permitted or entitled both to obtain specific performance pursuant to Section 11.6 and to receive all or any portion of the Reverse Termination Feeabove.

Effect of Termination; Termination Fees. (a) In the event that of termination of this Agreement is terminated as provided in Section 8.1, and subject to the provisions of Section 9.1, then this Agreement shall forthwith become null void, and void and there shall be no liability or obligation on the part of no further force and effect any of the parties, except (except for i) the provisions of Section 6.4(e), this Section 9.38.2, Article Xthe last sentence of Section 6.4, Section 11.3, Section 11.5, Section 11.6 6.7 and Exhibit A) and each ARTICLE IX shall survive any such termination of the Parties shall be relieved of its duties and obligations arising under this Agreement after the date of and no such termination shall relieve either party from any liability or obligation under such provisions and the Parties shall have no further Liability hereunder (except pursuant to Section 6.4(e), this Section 9.3 and Section 11.6); provided, ii) subject to Section 9.3(d9.9(b), that nothing in this Section 9.3 contained herein shall relieve Sellers of any Liability party from liability for fraud or a willful breach of this Agreementany Willful Breach hereof. (b) In If this Agreement is terminated (i) by the event Company pursuant to Section 8.1(f), (ii) by Parent pursuant to Section 8.1(e); provided, that if either Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii) at a time when Parent would have been entitled to terminate this Agreement pursuant to Section 8.1(e), this Agreement shall be deemed terminated pursuant to Section 8.1(e) for purposes of this Section 8.2(b), (iii) by Parent pursuant to Section 8.1(c) and at or prior to first occurrence of such breach by the Company referred to in the case of a termination pursuant to Section 8.1(c) there shall have been publicly made directly to the stockholders of the Company generally or shall otherwise have become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make, an offer or proposal for a transaction that would constitute a Company Alternative Transaction (a Company Qualifying Transaction), which shall not have been withdrawn on or prior to the first occurrence of such breach in the case of a termination pursuant to Section 8.1(c) or (iv) by Parent or the Company pursuant to Section 8.1(b)(i) because the Merger has not been consummated at or prior to the Outside Date, and at or prior to the time of such termination there shall have been made to the Company, or shall have been made directly to the stockholders of the Company generally or shall otherwise have become publicly known or any person shall have publicly announced an intention (whether or not conditional) to make, an offer or proposal for a transaction that would constitute a Company Qualifying Transaction (whether or not such offer or proposal will have been withdrawn prior to the Outside Date) and, in the case of clauses (b)(iii) and (b)(iv), if within 9 months of termination of this Agreement (A) the Company or its Subsidiaries enters into a definitive agreement with any Company Third Party with respect to a Company Qualifying Transaction or (B) any Company Qualifying Transaction is consummated, then, in each case set forth above, the Company shall pay to Parent, not later than (x) in the case of clauses (b)(i) and (b)(ii), the date of termination of this Agreement and (y) in the case of clauses (b)(iii) and (b)(iv), one Business Day after the earlier of the date the agreement referred to in clause (A) is entered into or the Company Qualifying Transaction referred to in clause (B) is consummated, a termination fee of $52,000,000 (the Company Termination Fee); provided that for the purpose of the definition of the Company Qualifying Transaction, the term the Company Alternative Transaction shall have the meaning assigned to the term in Section 5.2(a), except that all references to “20%” shall be deemed replaced with “50%”. Notwithstanding anything to the contrary herein, no Company Termination Fee shall be payable in any circumstance in which the Company Stockholders Meeting is held and the Company Stockholder Approval is not obtained. (c) If this Agreement is terminated by the Major Sellers Company pursuant to Section 9.1(d8.1(h), Parent shall pay to the Company, within five (5) Business Days of the date of termination of this Agreement, a termination fee of $52,000,000 (the Parent Termination Fee). (d) The Company Termination Fee payable under Section 8.2(b) and the Parent Termination Fee payable under Section 8.2(c) shall be payable in immediately available funds no later than the applicable date set forth in Section 8.2(b) or Section 9.1(e8.2(c), or is terminated by the Major Sellers or Acquirors pursuant as applicable. If a party fails to timely pay any amount due under Section 9.1(f) at a time when Sellers could have terminated the Agreement pursuant to Section 9.1(d8.2(b) or Section 9.1(e8.2(c), then, in any such case, Acquirors party shall promptly, but in no event later than ten Business Days after the date of such termination, pay or cause to be paid to Sellers or their designee an amount in cash equal to $164,643,001 (the “Reverse Termination Fee”) by wire transfer of immediately available funds to one or more accounts designated by Sellers in writing. (c) It is agreed that the Reverse Termination Fee is an integral part of this Agreement and without the Reverse Termination Fee, Acquirors and Sellers would not have entered into this Agreement. The Reverse Termination Fee is intended to be liquidated damages (and not a penalty). Accordingly, if Acquirors fail to pay the Reverse Termination Fee pursuant to Section 9.3(b) on or prior to the date such amounts are due hereunder, and, in order to obtain such payment, Sellers commence a Proceeding that results in a final, nonappealable judgment against Acquirors for the payment of the Reverse Termination Fee pursuant to Section 9.3(b), Acquirors shall pay, or cause to be paid, to Sellers, interest on such amount at an annual rate equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date such amounts were originally due hereunder which shall accrue from such date through the date such payment is actually delivered to Sellers or their designee, and the costs and expenses (including reasonable attorneys’ legal fees and expenses) incurred by Sellers in connection with such Proceedingany action, including the filing of any lawsuit or other legal action, taken to collect payment. (de) The Parties agree Each party agrees that notwithstanding anything in this Agreement to the contrary (other than with respect to claims for, or arising out of or in connection with, a Willful Breach hereof), (i) in the event that the monetary remedies set forth Company Termination Fee is paid in accordance with this Section 9.3(b) (when and if available under 8.2, the express terms hereof) and the specific performance remedies set forth in Section 11.6 payment of such Company Termination Fee shall be the sole and exclusive remedies (whether at lawremedy of Sibelco, in equity, in contract, in tort or otherwise, whether by or through piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Person) of Sellers Parent and any of their respective formerSubsidiaries, current equityholders, Affiliates, officers, directors, employees and future Affiliates Representatives against, as applicable, the Company any of its Representatives or Affiliates, and (whichii) in no event will Sibelco, for the purposes Parent or any other such person seek to recover any other money damages or seek any other remedy based on a claim in law or equity with respect to, in each case of this Section 9.3(dclauses (i) and (ii), shall be deemed to include the TGE Entities)(A) any loss suffered, each of their formerdirectly or indirectly, current and future partners, members, equityholders and Representatives, and each of their respective heirs, executors, administrators, successors and assigns, for any Losses or Liabilities suffered or incurred by any such Person with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby as a result of the failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any or no reason or, in the event of a failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any reason or for no reason, for any breach by any Acquiror of this Agreement. Without limiting the rights of Acquirors under the Debt Commitment Papers, upon the payment of the Reverse Termination Fee following a failure of the Closing to occur or the transactions contemplated by the Transactions Merger to be consummated, no Acquiror(B) the termination of this Agreement, Acquiror Non-Recourse Party (C) any liabilities or Financing Source obligations arising under this Agreement, or (D) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and (iii) upon payment of the Company Termination Fee in accordance with this Section 8.2, neither the Company nor any of its Affiliates or Representatives shall have any further liability or obligation in connection with, to the other parties relating to or arising out of this Agreement or the Transactions; provided that (x) the Confidentiality Agreement shall survive any termination of this Agreement in accordance with its terms and (y) payment of the Company Termination Fee shall not relieve either party from any liability or obligation under Section 6.7. (f) Each party further agrees that notwithstanding anything in this Agreement to the contrary, including Sections 8.2(a) and 8.2(h), in the event that all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is fully capable of being satisfied at the Closing) and the Financing is not funded by the date required pursuant to Section 1.2 hereof, (i) the sole and exclusive remedies of the Company and any of its Subsidiaries, equityholders, Affiliates, officers, directors, employees and Representatives against Sibelco, Parent or any of their respective Representatives or Affiliates, including where Sibelco, Parent, Merger Sub or Merger Sub LLC breaches this Agreement or fails to perform hereunder (whether willfully, intentionally, unintentionally, through a Willful Breach or otherwise), shall be (A) specific performance of Sibelco and Parent’s obligations solely under Section 6.3 in accordance with Section 9.9(a), (B) termination of this Agreement and payment of the Parent Termination Fee pursuant to, and in accordance with, Section 8.1(h) hereof (and the right to specifically enforce Parent’s obligation to pay the Parent Termination Fee pursuant to Section 9.9(a) hereof) or (C) in the case of a Willful Breach, a claim against Parent for damages; (ii) except as set forth in clause (i)(C) above, in no event will the Company or any of its Subsidiaries, equityholders, Affiliates, officers, directors, employees or Representatives (A) be entitled to seek or obtain any recovery or judgment in excess of the Parent Termination Fee against Sibelco, Parent or any of their respective Representatives or Affiliates, or any of their assets, or (B) seek to recover any other damages (including consequential, special, indirect or punitive damages) or seek any other remedy based on a claim in law or equity against Sibelco, Parent or any of their respective Representatives or Affiliates, and the Company, on its own behalf and on behalf each of its Subsidiaries, equityholders, Affiliates, officers, directors, employees and Representatives, hereby irrevocably and unconditionally waives any and all rights to any such claim or recovery, in each case of clauses (A) and (B), in respect of (x) any loss suffered, directly or indirectly, as a result of the failure of the Merger to be consummated, (y) the termination of this Agreement, (z) any liabilities or obligations arising under this Agreement, or (xx) any claims or actions arising out of or relating to any breach, termination or failure of performance under this Agreement, and (iii) upon payment of the Transaction Documents Parent Termination Fee, as applicable, in accordance with this Section 8.2, none of Sibelco, Parent or any of their respective Affiliates or Representatives shall have any further liability or obligation to the Company relating to or arising out of this Agreement or the transactions contemplated hereby and therebyTransactions. Under In no circumstance shall (i) Parent be required to pay the Parent Termination Fee on more than one occasion, or (ii) Parent be required to pay the Parent Termination Fee and other damages to the Company. Notwithstanding the foregoing, payment of the Parent Termination Fee shall not relieve Parent from any Person be permitted liability or entitled both obligation under Section 6.7. (g) The parties acknowledge and agree that the amount of the overall loss that Parent or the Company may incur in the circumstances in which the Company Termination Fee or the Parent Termination Fee, as applicable, is payable under this Section 8.2 is not possible to obtain specific performance pursuant ascertain as at the date of this Agreement and that, as such, the Company Termination Fee and the Parent Termination Fee represent genuine estimates by the parties of the amount of the overall loss that Parent or the Company, as the case may be, would incur in the circumstances in which the Company Termination Fee or the Parent Termination Fee is payable. (h) Subject to Section 11.6 9.9(b), the last sentence of Section 8.2(f) and the last sentence of Section 9.9(c), no party will be relieved or released from liability for fraud or damages of any kind suffered by the other parties, including consequential damages and any other damages (whether or not communicated or contemplated at the time of execution of this Agreement), to receive the extent arising out of any Willful Breach of any of its representations, warranties, covenants or agreements contained in this Agreement, and, in each case, the aggrieved party will be entitled to all rights and remedies available at law or in equity; provided, however, that no party shall be liable for any damages in respect of, for the avoidance of doubt, any loss of the benefit of the Transactions to such party’s stockholders, any stockholder premium or any portion of other benefit to such party’s stockholders (provided further, however, that the Reverse Termination Feelimitation contained in such proviso shall not be construed to limit the rights and remedies available at law or in equity to any party hereto to recover its damages on its own behalf, without regard to whether such rights or remedies would indirectly constitute a benefit to such party’s stockholders).

Effect of Termination; Termination Fees. (a) In the event that of the termination of this Agreement is terminated as provided in accordance with Section 9.18.1, then this Agreement shall forthwith thereafter become null and void and of have no further force effect, and effect (no party hereto shall have any liability to the other party hereto or their respective Affiliates, directors, officers or employees, except for the provisions of Section 6.4(e), this Section 9.3, Article X, Section 11.3, Section 11.5, Section 11.6 and Exhibit A) and each obligations of the Parties shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and the Parties shall have no further Liability hereunder (except pursuant to Section 6.4(e), this Section 9.3 and Section 11.6); provided, subject to Section 9.3(d), that nothing parties hereto contained in this Section 9.3 shall 8.2 and in Sections 7.3(b) (“Information and Documents”) and Article IX (“Miscellaneous”) (other than Section 9.1 (“Non-Survival of Representations and Warranties and Agreements”) and Section 9.10 (“Disclosure Schedules”)) hereof, and except that nothing herein, including the payment of the termination fee under Section 8.2(b), will relieve Sellers any party from Liability or limit any party’s Liability for any willful and knowing breach of any Liability for fraud or a willful breach of covenant set forth in this AgreementAgreement prior to such termination. (b) In the event that of the termination of this Agreement is terminated in accordance with Section 8.1 by the Major Sellers (A) Purchaser pursuant to Section 9.1(d8.1(g); (B) either Purchaser or Section 9.1(e), or is terminated by the Major Sellers or Acquirors Seller pursuant to Section 9.1(f8.1(f) at a time when Sellers could and circumstances would have terminated the permitted Purchaser to terminate this Agreement pursuant to Section 9.1(d8.1(g); (C) Purchaser pursuant to Section 8.1(d) as a result of a failure by Seller to perform or comply with its obligations under Sections 7.1 or 7.2, or (D) either Purchaser or Seller pursuant to Section 8.1(b) or Section 9.1(e8.1(f) if prior to such termination, (i) an Acquisition Proposal shall have been made to Seller or shall have been made known publicly or to the stockholders of Seller generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal, and (ii) within nine months of such termination, Seller enters into a definitive agreement to consummate any Acquisition Proposal or any Acquisition Proposal is consummated, then Seller shall pay to Purchaser, (x) in the case of a termination by Purchaser covered by clauses (A), then(B), in any such caseor (C), Acquirors shall promptly, but in no event later than ten within two Business Days after following the date of such termination, pay (y) in the case of a termination by Seller covered by clause (B), prior to or cause to be paid to Sellers concurrently with such termination, or their designee (z) in the case of clause (D), upon the earlier of such entry into a definitive agreement or consummation, a termination fee in cash in an amount in cash equal to $164,643,001 2,500,000. (the “Reverse Termination Fee”c) Any payment made under this Section 8.2 shall be made by wire transfer of immediately available funds to one or more accounts an account designated in writing by Sellers in writing. (c) It is agreed that the Reverse Termination Fee is an integral part of this Agreement and without the Reverse Termination Fee, Acquirors and Sellers would not have entered into this Agreement. The Reverse Termination Fee is intended to be liquidated damages (and not a penalty). Accordingly, if Acquirors fail to pay the Reverse Termination Fee pursuant to Section 9.3(b) on or prior to the date such amounts are due hereunder, and, in order to obtain such payment, Sellers commence a Proceeding that results in a final, nonappealable judgment against Acquirors for the payment of the Reverse Termination Fee pursuant to Section 9.3(b), Acquirors shall pay, or cause to be paid, to Sellers, interest on such amount at an annual rate equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date such amounts were originally due hereunder which shall accrue from such date through the date such payment is actually delivered to Sellers or their designee, and the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Sellers in connection with such ProceedingPurchaser. (d) The Parties agree Each of Seller and Purchaser acknowledges that (i) the monetary remedies set forth agreements contained in Section 9.3(b) (when and if available under the express terms hereof) and the specific performance remedies set forth in Section 11.6 shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise, whether by or through piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Person) of Sellers and any of their respective former, current and future Affiliates (which, for the purposes of this Section 9.3(d), shall be deemed to include the TGE Entities), each 8.2 are an integral part of their former, current and future partners, members, equityholders and Representatives, and each of their respective heirs, executors, administrators, successors and assigns, for any Losses or Liabilities suffered or incurred by any such Person with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby as a result of the failure of the Closing to occur or the transactions contemplated by this Agreement; (ii) without these agreements, Purchaser and Seller would not enter into this Agreement; and (iii) the Transaction Documents to be consummated termination fee payable under Section 8.2(b) is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Purchaser for any or no reason or, the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the event of a failure expectation of the Closing to occur or consummation of the transactions contemplated by the Transaction Documents hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Seller be consummated for any reason or for no reason, for any breach by any Acquiror of this Agreement. Without limiting the rights of Acquirors under the Debt Commitment Papers, upon the payment of the Reverse Termination Fee following a failure of the Closing required to occur or the transactions contemplated by the Transactions pay to be consummated, no Acquiror, Acquiror Non-Recourse Party or Financing Source shall have any liability or obligation in connection with, relating to or arising out of this Agreement, the Transaction Documents or the transactions contemplated hereby and thereby. Under no circumstance shall any Person be permitted or entitled both to obtain specific performance Purchaser more than one termination fee pursuant to Section 11.6 and to receive all or any portion of the Reverse Termination Fee8.2(b).

Effect of Termination; Termination Fees. (a) In the event that this Agreement is terminated as provided in Section 9.18.1, then this Agreement shall forthwith become null and void and of no further force and effect (except for the provisions of Article I, Section 6.4(e6.7(a), Section 6.7(b), Section 6.8, this Section 9.3, Article X8.2, Section 11.39.2(a), Section 11.59.6, Section 11.6 9.7, Section 9.8, Section 9.9, and Exhibit A) Section 9.11), and each of the Parties shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and the Parties shall have no further Liability hereunder (except pursuant to Section 6.4(e6.7(a), Section 6.7(b), this Section 9.3 8.2 and Section 11.69.8); provided, subject to Section 9.3(d8.2(e), that nothing in this Section 9.3 8.2 shall relieve Sellers any Party of any Liability for fraud or a willful breach of this Agreement. (b) In the event that this Agreement is terminated by the Major Sellers LM Infra pursuant to Section 9.1(d8.1(c)(i) or Section 9.1(e), or is terminated by the Major Sellers Partnership or Acquirors LM Infra pursuant to Section 9.1(f8.1(b)(ii) at a time when Sellers LM Infra could have terminated the Agreement pursuant to Section 9.1(d) or Section 9.1(e8.1(c)(i), then, in any such case, Acquirors then the Partnership shall promptly, but in no event later than ten 10 Business Days after the date of such termination, pay to LM Infra or cause to be paid to Sellers or their its designee an amount in cash equal to $164,643,001 7,300,000 (the “Reverse Partnership Termination Fee”) by wire transfer of immediately available funds to one or more accounts designated by Sellers LM Infra in writing. (c) In the event that this Agreement is terminated by the Partnership pursuant to Section 8.1(e), or is terminated by the Partnership or LM Infra pursuant to Section 8.1(b)(ii) at a time when the Partnership could have terminated the Agreement pursuant to Section 8.1(e), then, in any such case, Landmark Dividend or its designee shall promptly, but in no event later than 10 Business Days after the date of such termination, pay or cause to be paid to the Partnership or its designee an amount in cash equal to $18,250,000 (the “Buyer Termination Fee”) by wire transfer of immediately available funds to one or more accounts designated by the Partnership in writing. (d) It is agreed that the Reverse Termination Fee is agreements contained in this Section 8.2 are an integral part of this Agreement and without these agreements, the Reverse Termination Fee, Acquirors and Sellers Parties would not have entered into this Agreement. The Reverse Partnership Termination Fee is and the Buyer Termination Fee are intended to be liquidated damages (and not a penalty). Accordingly, if Acquirors fail the Partnership or Landmark Dividend fails to pay or cause to be paid the Reverse Partnership Termination Fee or the Buyer Termination Fee, respectively, pursuant to this Section 9.3(b) 8.2 on or prior to the date such amounts are due hereunder, and, in order to obtain such payment, Sellers commence the Partnership or LM Infra, as applicable, commences a Proceeding that results in a final, nonappealable judgment against Acquirors Landmark Dividend or the Partnership for the any payment of the Reverse Partnership Termination Fee or the Buyer Termination Fee pursuant to this Section 9.3(b)8.2, Acquirors Landmark Dividend or the Partnership, as applicable, shall pay, or cause to be paid, to Sellersthe Partnership or LM Infra, as applicable, interest on such amount at an annual rate equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date such amounts were originally due hereunder which shall accrue from such date through the date such payment is actually delivered to Sellers the Partnership or LM Infra, as applicable, or their respective designee, and the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Sellers the Partnership or LM Infra, as applicable, in connection with such Proceeding. (de) The Parties agree that the monetary remedies set forth in this Section 9.3(b) 8.2 (when and if available under the express terms hereof) and the specific performance remedies set forth in Section 11.6 9.8 shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise, whether by or through piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Person) of Sellers the Buyer Parties and the Partnership Parties and any of their respective former, current and future Affiliates (which, for the purposes of this Section 9.3(d), shall be deemed to include the TGE Entities)Affiliates, each of their former, current and future partners, members, equityholders and Representatives, and each of their respective heirs, executors, administrators, successors and assigns, for any Losses or Liabilities suffered or incurred by any such Person with respect to this Agreement, the other Transaction Documents Agreement and the transactions contemplated hereby and thereby as a result of the failure of the Closing to occur or the transactions contemplated by the Transaction Documents this Agreement to be consummated for any or no reason or, in the event of a failure of the Closing to occur or the transactions contemplated by the Transaction Documents this Agreement to be consummated for any reason or for no reason, for any breach by any Acquiror Party of this Agreement. Without limiting the rights of Acquirors the Buyer Parties under the Debt Commitment Papers, upon the payment of the Reverse Buyer Termination Fee following a failure of the Closing to occur or the transactions contemplated by the Transactions to be consummatedhereby, no Acquiror, Acquiror Buyer Party or Buyer Non-Recourse Party or Financing Source shall have any liability Liability or obligation in connection with, relating to or arising out of this Agreement, the Transaction Documents Agreement or the transactions contemplated hereby. For the avoidance of doubt, in the event of termination of this Agreement, the Financing Sources will have no liability to the Partnership Parties or any of their Affiliates or any of their respective direct or indirect equityholders hereunder or otherwise relating to or arising out of the transactions contemplated hereby and therebyor any Debt Financing. Under no circumstance shall any Person be permitted or entitled both to obtain specific performance pursuant to Section 11.6 9.8 and to receive all or any portion of the Reverse Partnership Termination Fee or the Buyer Termination Fee.

Effect of Termination; Termination Fees. (a) In Subject to Section 10.3(b), in the event that this Agreement is terminated as provided in Section 9.110.1, then this Agreement shall forthwith become null and void and of no further force and effect (except for the provisions of Section 6.4(e), this Section 9.3, Article X, Section 11.3, Section 11.5, Section 11.6 and Exhibit A) and each of the Parties parties hereto shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and such termination shall be without Liability to Acquirors or Sellers, except for the Parties shall have no further Liability hereunder (except pursuant to Section 6.4(e), provisions of this Section 9.3 10.3, Article XI, Section 12.3 and Section 11.6)12.5; provided, subject to Section 9.3(d10.3(d), that nothing in this Section 9.3 10.3 shall relieve Acquirors or Sellers of any Liability for fraud or a willful breach of this Agreement. (b) In the event that this Agreement is terminated by the Major Sellers pursuant to Section 9.1(dSections 10.1(d) or Section 9.1(e(e), or is terminated by the Major Sellers or Acquirors pursuant to Section 9.1(f10.1(f) at a time when Sellers could have terminated the Agreement pursuant to Section 9.1(dSections 10.1(d) or Section 9.1(e(e), then, in any such case, Acquirors shall promptly, but in no event later than ten Business Days 10 days after the date of such termination, pay or cause to be paid to Sellers or their designee an amount in cash equal to $164,643,001 4% of the Purchase Price (the “Reverse Termination Fee”) by wire transfer of immediately available funds to one or more accounts designated by Sellers in writing. (c) It is agreed that the Reverse Termination Fee is an integral part of this Agreement and without the Reverse Termination Fee, Acquirors and Sellers would not have entered into this Agreement. The Reverse Termination Fee is intended to be liquidated damages (and not a penalty). Accordingly, if Acquirors fail to pay the Reverse Termination Fee pursuant to Section 9.3(b10.3(b) on or prior to the date such amounts are due hereunder, and, in order to obtain such payment, Sellers commence a Proceeding that results in a final, nonappealable judgment against Acquirors for the payment of the Reverse Termination Fee pursuant to Section 9.3(b10.3(b), Acquirors shall pay, or cause to be paid, to Sellers, interest on such amount at an annual rate equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date such amounts were originally due hereunder which shall accrue from such date through the date such payment is actually delivered to Sellers or their designee, and the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Sellers in connection with such Proceeding. (d) The Parties agree that the monetary remedies set forth in Section 9.3(b) (when and if available under the express terms hereof10.3(b) and the specific performance remedies set forth in Section 11.6 12.6 shall be the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise, whether by or through piercing of the corporate or partnership veil, by or through a claim by or on behalf of any Person) of Sellers and any of their respective former, current and future Affiliates (which, for the purposes of this Section 9.3(d), shall be deemed to include the TGE Entities)Affiliates, each of their former, current and future partners, members, equityholders and Representatives, and each of the Affiliates and current, former and future partners, members equityholders and Representatives of any of the foregoing (with “Affiliates” for purposes of this Section 10.3(d) to include the Subject Entities), and each of their respective heirs, executors, administrators, successors and assigns, for any Losses or Liabilities suffered or incurred by any such Person with respect to this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby as a result of the failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any or no reason or, in the event of a failure of the Closing to occur or the transactions contemplated by the Transaction Documents to be consummated for any reason or for no reason, for any breach by any Acquiror of this Agreement. Without limiting the rights of Acquirors under the Debt Commitment Papers, upon Upon the payment of the Reverse Termination Fee following a failure of the Closing to occur or the transactions contemplated by the Transactions to be consummatedFee, no Acquiror, Acquiror or Acquiror Non-Recourse Party or Financing Source shall have any liability or obligation in connection with, relating to or arising out of this Agreement, the Transaction Documents or the transactions contemplated hereby and thereby. Under no circumstance circumstances shall any Person be permitted or entitled both to seek or obtain specific performance pursuant to Section 11.6 12.6 and to receive all or any portion of the Reverse Termination Fee.