Limitations on Liabilities. (a) In no event shall any party or any of such party’s affiliates be entitled to seek the remedy of specific performance of this Agreement other than as set forth in Section 9.07. For the avoidance of doubt, while the Company or Parent may pursue both a grant of specific performance as permitted by Section 9.07 and the payment of the Parent Termination Fee pursuant to Section 8.03(c) and the guarantee of such obligations pursuant to the Limited Guarantees (subject to their terms, conditions and limitations) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays the Parent Termination Fee pursuant to Section 8.03(c), then such payment shall be the sole and exclusive remedy of the Company, its Subsidiaries, its direct and indirect holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, assignees or successors (collectively, the “Company Related Parties”) against (i) Holdco, Parent, Merger Sub and the Guarantors, (ii) any of their respective former, current or future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, shareholder assignees or successors, (iii) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Holdco, Parent or Merger Sub, or (iv) any holders or future holders of any equity, share, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, stockholders, assignees or successors of any of the foregoing (all persons described in (i) to (iv), collectively, the “Parent Related Parties”) and none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, including the failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, knowingly, willfully or otherwise) or otherwise. For the avoidance of doubt, none of Holdco, Parent, Merger Sub or any Parent Related Party shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters) other than the payment of the Parent Termination Fee pursuant to Section 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), and in no event shall any of the Company, its Subsidiaries, or any other Company Related Party seek, or permit to be sought, on behalf of any Company Related Party, any monetary damages from any Parent Related Party in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters), other than from Parent to the extent provided in Section 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), or the Guarantors to the extent provided in the relevant Limited Guarantees, in each case without duplication. In no event shall any of the Company, the Subsidiaries or any Company Related Party be entitled to seek the remedy of specific performance of this Agreement other than as set forth in Section 9.07. (b) Notwithstanding anything to the contrary in this Agreement, if the Company pays the Company Termination Fee pursuant to Section 8.03(a), then any such payment shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties and none of the members of Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the transactions contemplated hereby or the failure of the Merger to be consummated. Parent agrees to cause any Action (whether such Action is being prosecuted by Parent or any other member of the Parent Related Parties) pending against the Company or any member of the Company Related Parties to be dismissed with prejudice at such time as, in connection with this Agreement or any of the transactions contemplated hereby, the Company pays the Company Termination Fee pursuant to Section 8.03(a). The provisions of this Section 8.04(b) are intended to be for the benefit of, and shall be enforceable by, each member of the Company Related Parties.
Appears in 2 contracts
Samples: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
Limitations on Liabilities. (a) In no event shall any party or any of such party’s affiliates be entitled Notwithstanding anything to seek the remedy contrary in this Agreement, except for an order of specific performance of this Agreement other than as set forth in Section 9.07. For to the avoidance of doubt, while the Company or Parent may pursue both a grant of specific performance as extent permitted by Section 9.07 9.07, the Company’s right to terminate this Agreement and the payment of receive the Parent Termination Fee pursuant to Section 8.03(c) and the guarantee of such obligations pursuant to the Limited Guarantees (subject to their terms, conditions and limitations) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, and any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment guarantee of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays the Parent Termination Fee such obligations pursuant to Section 8.03(c)the Limited Guarantees, then such payment shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its the Subsidiaries, its the direct and or indirect holders shareholders of the Company or any equityother person, partnership or limited liability company interest, controlling personsany of their respective affiliates, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, assignees representatives, advisors or successors agents (collectively, the “Company Related PartiesGroup”) against (i) Holdco, Parent, Merger Sub Sub, the Sponsors and the Sponsor Guarantors, (ii) any of their respective the former, current or and future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, general or limited partners, shareholder or, assignees or successorsof, each of Parent, Merger Sub, the Sponsors and the Sponsor Guarantors, (iii) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Holdco, Parent or Merger Sub, or (iv) any holders or future holders of any equity, share, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, general or limited partners, stockholders, assignees or successors of any of the foregoing (all persons described in (i) to (iv), collectively, the “Parent Related PartiesGroup”) ), for any and none all loss or damage suffered as a result of the Parent Related Parties shall have any further liability breach of any representation, warranty, covenant or obligation relating to or arising out of this Agreement or the Transactionsagreement, including the failure of the Merger to be consummated or for a breach or any failure to perform hereunder or other failure of the Transactions to be consummated (in each case whether willfully, intentionally, unintentionally, knowingly, willfully unintentionally or otherwise) or otherwise). For the avoidance of doubt, none neither Parent nor any member of Holdco, Parent, Merger Sub or any the Parent Related Party Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters) other than the payment of the Parent Termination Fee pursuant to Section 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), and in no event shall any of the Company, its the Subsidiaries, or any other member of the Company Related Party Group seek, or permit to be sought, on behalf of any member of the Company Related PartyGroup, any monetary damages from any member of the Parent Related Party Group in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters), other than from Parent or Merger Sub to the extent provided in Section 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), or the Sponsor Guarantors to the extent provided in the relevant Limited Guarantees, in each case without duplication. In no event shall any of the Company, the Subsidiaries or any other member of the Company Related Party Group be entitled to seek the remedy of specific performance of this Agreement other than as set forth in Section 9.07. For the avoidance of doubt, while the Company may pursue both a grant of specific performance as permitted by Section 9.07 and the payment of the Parent Termination Fee pursuant to Sections 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee.
(b) Notwithstanding anything to the contrary in this Agreement, if except for an order of specific performance to the Company pays extent permitted by Section 9.07, Parent’s right to terminate this Agreement and receive the Company Termination Fee pursuant to Section 8.03(a8.03(b), then and any such payment amounts pursuant to Section 8.03(d) (if any), shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties and none of the members of Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the transactions contemplated hereby or the failure of the Merger to be consummated. Parent agrees to cause any Action (whether such Action is being prosecuted by Parent at law, in equity, in contract, in tort or otherwise) of any other member of the Parent Related Parties) pending Group against the Company or any member of the Company Related Parties Group (except for any obligations under agreements set forth in Section 4.09 of the Parent Disclosure Schedule), for any and all loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement, any failure to perform hereunder or other failure of the Transactions to be dismissed with prejudice at such time asconsummated (in each case whether willfully, intentionally, unintentionally or otherwise). For the avoidance of doubt, neither the Company nor any member of the Company Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the transactions contemplated herebyTransactions, other than the Company pays payment of the Company Termination Fee pursuant to Section 8.03(a8.03(b), and any amounts pursuant to Section 8.03(d), if any, and pursuant to any obligations under agreements set forth in Section 4.09 of the Parent Disclosure Schedule, and in no event shall any of Parent or Merger Sub or any other member of the Parent Group seek, or permit to be sought, on behalf of any member of the Parent Group, any monetary damages from any member of the Company Group in connection with this Agreement or any of the Transactions, other than from the Company to the extent provided in Section 8.03(b) and any amounts pursuant to Section 8.03(d) (if any), and except for any obligations under agreements set forth in Section 4.09 of the Parent Disclosure Schedule. In no event shall any of Parent, Merger Sub, or any other member of the Parent Group be entitled to seek the remedy of specific performance of this Agreement other than as set forth in Section 9.07. For the avoidance of doubt, while Parent may pursue both a grant of specific performance as permitted by Section 9.07 and the payment of the Company Termination Fee pursuant to Section 8.03(b), and any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall Parent be permitted or entitled to receive both such grant of specific performance and payment of the Company Termination Fee.
(c) The provisions of this Section 8.04(b) 8.04 are intended to be for the benefit of, and shall be enforceable by, each member of the Parent Group and the Company Related PartiesGroup.
Appears in 1 contract
Limitations on Liabilities. (ai) In Notwithstanding anything to the contrary in this Agreement, in the event that Parent or Merger Sub fail to effect the Closing when required pursuant to Section 2.2 for any reason or no event shall any party reason or any of such party’s affiliates be entitled to seek the remedy of specific performance of they otherwise breach this Agreement other than as set forth in Section 9.07. For the avoidance of doubt(whether willfully, while the Company intentionally, unintentionally or Parent may pursue both a grant otherwise) or otherwise fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance as and only to the extent permitted by Section 9.07 9.6, the Company’s right to terminate this Agreement and the payment of receive the Parent Termination Fee pursuant to Section 8.03(c8.2(c) and (including the guarantee of such obligations pursuant right to enforce the Limited Guarantees (subject to their terms, conditions and limitationsGuarantee) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays the Parent Termination Fee pursuant to Section 8.03(c), then such payment shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its Subsidiariesthe Company Subsidiaries and all members of the Company Group (as defined below) against (A) Parent and Merger Sub, its direct (B) the former, current and indirect future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, shareholders, assignees of Parent or successors (collectively, the “Company Related Parties”) against (i) Holdco, Parent, Merger Sub and the GuarantorsSub, (ii) any of their respective former, current or future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, shareholder assignees or successors, (iiiC) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Holdco, Parent or Merger Sub, Sub or (ivD) any holders or future holders of any equity, sharestock, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, stockholdersshareholders, assignees or successors of any of the foregoing (all persons described in clauses (iA) to through (ivD), collectively, the “Parent Related PartiesGroup”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) and none of the Parent Related Parties shall have any further liability or obligation relating failure to perform hereunder (whether willfully, intentionally, unintentionally or arising out of this Agreement otherwise) or the Transactions, including the other failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether willfully, intentionally, unintentionally, knowingly, willfully unintentionally or otherwise) or otherwise). For the avoidance of doubt, none neither Parent nor any member of Holdco, Parent, Merger Sub or any the Parent Related Party Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions transactions contemplated hereby (including the Equity Commitment LettersLoan Agreement and the Financing) other than the payment of the Parent Termination Fee pursuant to Section 8.03(c), 8.2(c) and any amounts pursuant to Section 8.03(d) (if any)the Limited Guarantee, and in no event shall any of the Company, its the Company Subsidiaries, the direct or indirect shareholders of the Company or any other Person, or any other of their respective Affiliates, directors, officers, employees, members, managers, partners, representatives, advisors or agents of the foregoing, (collectively, the “Company Related Party Group”) seek, or permit to be sought, on behalf of any member of the Company Related PartyGroup, any monetary damages from any Parent Related Party in connection with this Agreement or any of the Transactions (including the Equity Commitment Letters), other than from Parent to the extent provided in Section 8.03(c), and any amounts pursuant to Section 8.03(d) (if any), or the Guarantors to the extent provided in the relevant Limited Guarantees, in each case without duplication. In no event shall any of the Company, the Subsidiaries or any Company Related Party be entitled to seek the remedy of specific performance of this Agreement other than as set forth in Section 9.07.
(b) Notwithstanding anything to the contrary in this Agreement, if the Company pays the Company Termination Fee pursuant to Section 8.03(a), then any such payment shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties and none of the members of Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the transactions contemplated hereby or the failure of the Merger to be consummated. Parent agrees to cause any Action (whether such Action is being prosecuted by Parent or any other member of the Parent Related Parties) pending against the Company or any member of the Company Related Parties to be dismissed with prejudice at such time as, Group in connection with this Agreement or any of the transactions contemplated herebyhereby (including Loan Agreement and the Financing), other than (without duplication) from Parent or Merger Sub to the Company pays the Company Termination Fee pursuant to extent provided in Section 8.03(a8.2(c). The provisions of this Section 8.04(b) are intended to be for the benefit of, and shall be enforceable by, each member of the Company Related Parties.
Appears in 1 contract
Samples: Merger Agreement (China Nuokang Bio-Pharmaceutical Inc.)
Limitations on Liabilities. (ai) In no Notwithstanding anything to the contrary in this Agreement, the Financing Commitments, or the Limited Guarantees, in the event shall any party that Parent or any of such party’s affiliates be entitled Merger Sub fails to seek effect the remedy of specific performance of Closing when required pursuant to this Agreement other than as set forth in Section 9.07. For the avoidance of doubtfor any reason or no reason or they otherwise breach this Agreement or otherwise fail to perform hereunder, while the Company or Parent may pursue both a grant then, except for an order of specific performance as and only to the extent expressly permitted by Section 9.07 9.6, the Company’s right to terminate this Agreement and the payment of receive the Parent Termination Fee pursuant to Section 8.03(c8.2(c), any amounts pursuant to Section 8.2(d) (if any), and the guarantee of such obligations pursuant to the Limited Guarantees (subject to their terms, conditions and limitations) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays the Parent Termination Fee pursuant to Section 8.03(c), then such payment shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its Subsidiariesthe Company Subsidiaries and all members of the Company Group (as defined below) against (A) Parent, its direct Merger Sub or the Guarantors, (B) the former, current and indirect future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, shareholders, assignees or successors (collectively, the “Company Related Parties”) against (i) Holdcoof, Parent, Merger Sub and the Guarantorsor any Guarantor, (ii) any of their respective former, current or future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, shareholder assignees or successors, (iiiC) any lender or prospective lender, lead arranger, arranger, agent or representative of or to HoldcoParent, Parent Merger Sub or Merger Sub, any Guarantor or (ivD) any holders or future holders of any equity, sharestock, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, stockholdersshareholders, assignees or successors of any of the foregoing (all persons described in clauses (iA) to through (ivD), collectively, the “Parent Related PartiesGroup”) and none ), for any loss or damage suffered as a result of the Parent Related Parties shall have any further liability breach of any representation, warranty, covenant or obligation relating agreement or failure to perform hereunder or arising out of this Agreement or the Transactions, including the other failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, knowingly, willfully or otherwise) or otherwiseconsummated. For the avoidance of doubt, none neither Parent nor any member of Holdco, Parent, Merger Sub or any the Parent Related Party Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Equity Commitment LettersFinancing Commitments and the Limited Guarantees) other than the payment of the Parent Termination Fee pursuant to Section 8.03(c), 8.2(c) and any amounts pursuant to Section 8.03(d8.2(d) (if any), and in no event shall any of the Company, its the Company Subsidiaries, the direct or indirect shareholders of the Company or any other Person, or any other of their respective Affiliates, directors, officers, employees, members, managers, partners, representatives, advisors or agents of the foregoing, (collectively, the “Company Related Party Group”) seek, or permit to be sought, on behalf of any member of the Company Related PartyGroup, any monetary damages from any member of the Parent Related Party Group in connection with this Agreement or any of the Transactions (including the Equity Commitment LettersFinancing Commitments and the Limited Guarantees), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.03(c8.2(c), and any amounts pursuant to Section 8.03(d8.2(d) (if any), or from the Guarantors to the extent provided in the relevant Limited Guarantees, in each case without duplication. In no event shall the Company or any member of the Company, the Subsidiaries or any Company Related Party Group be entitled to seek the remedy of specific performance of this Agreement other than as specifically set forth in Section 9.079.6. For the avoidance of doubt, while the Company may pursue both a grant of specific performance as and only to the extent expressly permitted by Section 9.6 and the payment of the Parent Termination Fee pursuant to Section 8.2(c), under no circumstances shall the Company (or any member of the Company Group or any other Person) be permitted or entitled to receive both such grant of specific performance and payment of the Parent Termination Fee (or any other money damages).
(bii) Notwithstanding anything to the contrary in this Agreement, if except for an order of specific performance to the Company pays extent permitted by Section 9.6, Parent’s right to terminate this Agreement and receive the Company Termination Fee pursuant to Section 8.03(a8.2(b), then and any such payment amounts pursuant to Section 8.2(d) (if any), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Parent and any member of the Parent Related Parties Group against any member of the Company Related Parties and none Group (other than the Rollover Securityholders pursuant to the terms of the members Support Agreement), for any loss or damage suffered as a result of Company Related Parties shall have any further liability breach of any representation, warranty, covenant or obligation relating agreement, any failure to perform hereunder or arising out of this Agreement, the transactions contemplated hereby or the other failure of the Merger to be consummated. Parent agrees to cause any Action (whether such Action is being prosecuted by Parent or any other member For the avoidance of the Parent Related Parties) pending against doubt, neither the Company or nor any member of the Company Related Parties Group (other than the Rollover Securityholders pursuant to be dismissed with prejudice at such time as, the terms of the Support Agreement) shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the transactions contemplated herebyTransactions, other than the Company pays payment of the Company Termination Fee pursuant to Section 8.03(a8.2(b) and any amounts pursuant to Section 8.2(d) (if any), and in no event shall any of Parent or Merger Sub or any other member of the Parent Group seek, or permit to be sought, on behalf of any member of the Parent Group, any monetary damages from any member of the Company Group in connection with this Agreement or any of the Transactions, other than from the Company to the extent provided in Section 8.2(b) and any amounts pursuant to Section 8.2(d) (if any). In no event shall any of Parent, Merger Sub, or any other member of the Parent Group be entitled to seek the remedy of specific performance of this Agreement other than as specifically set forth in Section 9.6. For the avoidance of doubt, while Parent may pursue both a grant of specific performance as permitted by Section 9.6 and the payment of the Company Termination Fee pursuant to Section 8.2(b) and any amounts pursuant to Section 8.2(d) (if any), under no circumstances shall Parent be permitted or entitled to receive both such grant of specific performance and payment of the Company Termination Fee (or any other money damages).
(iii) The Parties expressly acknowledge and agree that, with respect to any termination of this Agreement under circumstances in which any of the Parent Termination Fee or the Company Termination Fee is payable pursuant to this Section 8.2, payment of the Parent Termination Fee or the Company Termination Fee, as required hereunder, shall constitute liquidated damages with respect to any claim for damages or any other claim which the Company, on the one hand, or Parent or Merger Sub, on the other hand, as the case may be, would otherwise be entitled to assert against Parent or Merger Sub, on the one hand, or the Company, on the other hand, as the case may be, or their respective assets, or against any of their respective employees or equityholders (without limiting any claims otherwise available to Parent against the Rollover Securityholders pursuant to the Support Agreement) or any other member of the Parent Group or the Company Group, as the case may be, with respect to any such termination of this Agreement. The Parties expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any such termination of this Agreement under circumstances in which any of the Company Termination Fee or the Parent Termination Fee is payable pursuant to this Section 8.2, the right to such payment constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination of this Agreement.
(iv) The provisions of this Section 8.04(b8.2(f) are intended to be for the benefit of, and shall be enforceable by, each member of the Company Related PartiesGroup and the Parent Group.
Appears in 1 contract
Limitations on Liabilities. (ai) In Notwithstanding anything to the contrary in this Agreement, the Financing Commitments, or the Limited Guarantees in the event that Parent or Merger Sub fails to effect the Closing when required pursuant to Section 2.2 for any reason or no event shall any party reason or any of such party’s affiliates be entitled to seek the remedy of specific performance of they otherwise breach this Agreement other than as set forth in Section 9.07. For the avoidance of doubt(whether willfully, while the Company intentionally, unintentionally or Parent may pursue both a grant otherwise) or otherwise fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance as and only to the extent expressly permitted by Section 9.07 9.6, the Company’s right to terminate this Agreement and the payment of receive the Parent Termination Fee pursuant to Section 8.03(c8.2(c), any amounts pursuant to Section 8.2(d) (if any), and the guarantee of such obligations pursuant to the Limited Guarantees (subject to their terms, conditions and limitations) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays the Parent Termination Fee pursuant to Section 8.03(c), then such payment shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its Subsidiariesthe Company Subsidiaries and all members of the Company Group (as defined below) against (A) Parent, its direct Merger Sub or the Guarantors, (B) the former, current and indirect future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, shareholders, assignees or successors (collectivelyof, the “Company Related Parties”) against (i) Holdco, each of Parent, Merger Sub and or the Guarantors, (ii) any of their respective former, current or future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, shareholder assignees or successors, (iiiC) any lender or prospective lender, lead arranger, arranger, agent or representative of or to HoldcoParent, Parent Merger Sub or Merger Sub, any Guarantor or (ivD) any holders or future holders of any equity, sharestock, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, stockholdersshareholders, assignees or successors of any of the foregoing (all persons described in clauses (iA) to through (ivD), collectively, the “Parent Related PartiesGroup”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) and none of the Parent Related Parties shall have any further liability or obligation relating failure to perform hereunder (whether willfully, intentionally, unintentionally or arising out of this Agreement otherwise) or the Transactions, including the other failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether willfully, intentionally, unintentionally, knowingly, willfully unintentionally or otherwise) or otherwise). For the avoidance of doubt, none neither Parent nor any member of Holdco, Parent, Merger Sub or any the Parent Related Party Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions (including the Equity Commitment LettersFinancing Commitments and the Limited Guarantees) other than the payment of the Parent Termination Fee pursuant to Section 8.03(c), 8.2(c) and any amounts pursuant to Section 8.03(d8.2(d) (if any), and in no event shall any of the Company, its the Company Subsidiaries, the direct or indirect shareholders of the Company or any other Person, or any other of their respective Affiliates, directors, officers, employees, members, managers, partners, representatives, advisors or agents of the foregoing, (collectively, the “Company Related Party Group”) seek, or permit to be sought, on behalf of any member of the Company Related PartyGroup, any monetary damages from any member of the Parent Related Party Group in connection with this Agreement or any of the Transactions (including the Equity Commitment LettersFinancing Commitments and the Limited Guarantees), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.03(c8.2(c), and any amounts pursuant to Section 8.03(d8.2(d) (if any), or the Guarantors to the extent provided in the relevant Limited Guarantees, in each case without duplication. In no event shall the Company or any member of the Company, the Subsidiaries or any Company Related Party Group be entitled to seek the remedy of specific performance of this Agreement other than as specifically set forth in Section 9.079.6. For the avoidance of doubt, while the Company may pursue both a grant of specific performance as and only to the extent expressly permitted by Section 9.6 and the payment of the Parent Termination Fee pursuant to Section 8.2(c), under no circumstances shall the Company (or any member of the Company Group or any other Person) be permitted or entitled to receive both such grant of specific performance and payment of the Parent Termination Fee (or any other money damages).
(bii) Notwithstanding anything to the contrary in this Agreement, if except for an order of specific performance to the Company pays extent permitted by Section 9.6, Parent’s right to terminate this Agreement and receive the Company Termination Fee pursuant to Section 8.03(a8.2(b), then and any such payment amounts pursuant to Section 8.2(d) (if any), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Parent and any member of the Parent Related Parties Group against any member of the Company Related Parties and none Group, for any loss or damage suffered as a result of the members any breach of Company Related Parties shall have any further liability representation, warranty, covenant or obligation relating agreement, any failure to perform hereunder or arising out of this Agreement, the transactions contemplated hereby or the other failure of the Merger to be consummated. Parent agrees to cause any Action (whether such Action is being prosecuted by Parent or any other member For the avoidance of the Parent Related Parties) pending against doubt, neither the Company or nor any member of the Company Related Parties to be dismissed with prejudice at such time as, Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the transactions contemplated herebyTransactions, other than the Company pays payment of the Company Termination Fee pursuant to Section 8.03(a8.2(b) and any amounts pursuant to Section 8.2(d) (if any), and in no event shall any of Parent or Merger Sub or any other member of the Parent Group seek, or permit to be sought, on behalf of any member of the Parent Group, any monetary damages from any member of the Company Group in connection with this Agreement or any of the Transactions, other than from the Company to the extent provided in Section 8.2(b) and any amounts pursuant to Section 8.2(d)(if any). In no event shall any of Parent, Merger Sub, or any other member of the Parent Group be entitled to seek the remedy of specific performance of this Agreement other than as specifically set forth in Section 9.6. For the avoidance of doubt, while Parent may pursue both a grant of specific performance as permitted by Section 9.6 and the payment of the Company Termination Fee pursuant to Section 8.2(b) and any amounts pursuant to Section 8.2(d)(if any), under no circumstances shall Parent be permitted or entitled to receive both such grant of specific performance and payment of the Company Termination Fee (or any other money damages).
(iii) The provisions of this Section 8.04(b8.2(f) are intended to be for the benefit of, and shall be enforceable by, each member of the Parent Group and the Company Related PartiesGroup.
Appears in 1 contract
Limitations on Liabilities. (ai) In Notwithstanding anything to the contrary in this Agreement, the Financing Agreements, or the Limited Guarantee in the event that Parent or Merger Sub fails to effect the Closing when required pursuant to Section 2.2 for any reason or no event shall any party reason or any of such party’s affiliates be entitled to seek the remedy of specific performance of they otherwise breach this Agreement other than as set forth in Section 9.07. For the avoidance of doubt(whether willfully, while the Company intentionally, unintentionally or Parent may pursue both a grant otherwise) or otherwise fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance as and only to the extent expressly permitted by Section 9.07 9.6, the Company’s right to terminate this Agreement and the payment of receive the Parent Termination Fee pursuant to Section 8.03(c8.2(c), any amounts pursuant to Section 8.2(d) (if any), and the guarantee of such obligations pursuant to the Limited Guarantees Guarantee (subject to their terms, conditions and limitations) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays the Parent Termination Fee pursuant to Section 8.03(c), then such payment shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its Subsidiariesthe Company Subsidiaries and all members of the Company Group (as defined below) against (A) Parent, its direct Merger Sub or the Guarantors, (B) the former, current and indirect future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, shareholders, assignees or successors (collectively, the “Company Related Parties”) against (i) Holdco, of Parent, Merger Sub and the Guarantorsor any Guarantor, (ii) any of their respective former, current or future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, shareholder assignees or successors, (iiiC) any lender or prospective lender, lead arranger, arranger, agent or representative of or to HoldcoParent, Parent Merger Sub or Merger Sub, any Guarantor or (ivD) any holders or future holders of any equity, sharestock, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, stockholdersshareholders, assignees or successors of any of the foregoing (all persons described in clauses (iA) to through (ivD), collectively, the “Parent Related PartiesGroup”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) and none of the Parent Related Parties shall have any further liability or obligation relating failure to perform hereunder (whether willfully, intentionally, unintentionally or arising out of this Agreement otherwise) or the Transactions, including the other failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether willfully, intentionally, unintentionally, knowingly, willfully unintentionally or otherwise) or otherwise). For the avoidance of doubt, none neither Parent nor any member of Holdco, Parent, Merger Sub or any the Parent Related Party Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions transactions contemplated by this Agreement (including the Equity Commitment LettersFinancing Agreements and the Limited Guarantee) other than the payment of the Parent Termination Fee pursuant to Section 8.03(c), 8.2(c) and any amounts pursuant to Section 8.03(d8.2(d) (if any), and in no event shall any of the Company, its the Company Subsidiaries, the direct or indirect shareholders of the Company or any other Person, or any other of their respective Affiliates, directors, officers, employees, members, managers, partners, representatives, advisors or agents of the foregoing, (collectively, the “Company Related Party Group”) seek, or permit to be sought, on behalf of any member of the Company Related PartyGroup, any monetary damages from any member of the Parent Related Party Group in connection with this Agreement or any of the Transactions transactions contemplated by this Agreement (including the Equity Commitment LettersFinancing Agreements and the Limited Guarantee), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.03(c), and any amounts pursuant to Section 8.03(d8.2(c) (if any), or the Guarantors to the extent provided in the relevant Limited Guarantees, in each case without duplicationGuarantee. In no event shall the Company or any member of the Company, the Subsidiaries or any Company Related Party Group be entitled to seek the remedy of specific performance of this Agreement other than as specifically set forth in Section 9.079.6. For the avoidance of doubt, while the Company may pursue both a grant of specific performance as and only to the extent expressly permitted by Section 9.6 and the payment of the Parent Termination Fee pursuant to Section 8.2(c), under no circumstances shall the Company (or any member of the Company Group or any other Person) be permitted or entitled to receive both such grant of specific performance and payment of the Parent Termination Fee (or any other money damages).
(bii) Notwithstanding anything to the contrary in this Agreement, if except for an order of specific performance to the Company pays extent permitted by Section 9.6, Parent’s right to terminate this Agreement and receive the Company Termination Fee pursuant to Section 8.03(a8.2(b), then and any such payment amounts pursuant to Section 8.2(d) (if any), shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Parent and any member of the Parent Related Parties Group against any member of the Company Related Parties and none Group, for any loss or damage suffered as a result of the members any breach of Company Related Parties shall have any further liability representation, warranty, covenant or obligation relating agreement, any failure to perform hereunder or arising out of this Agreement, the transactions contemplated hereby or the other failure of the Merger to be consummated. Parent agrees to cause any Action (whether such Action is being prosecuted by Parent or any other member For the avoidance of the Parent Related Parties) pending against doubt, neither the Company or nor any member of the Company Related Parties to be dismissed with prejudice at such time as, Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the transactions contemplated herebytransactions, other than the Company pays payment of the Company Termination Fee pursuant to Section 8.03(a8.2(b) and any amounts pursuant to Section 8.2(d) (if any), and in no event shall any of Parent or Merger Sub or any other member of the Parent Group seek, or permit to be sought, on behalf of any member of the Parent Group, any monetary damages from any member of the Company Group in connection with this Agreement or any of the transactions, other than from the Company to the extent provided in Section 8.2(b) and any amounts pursuant to Section 8.2(d) (if any). In no event shall any of Parent, Merger Sub, or any other member of the Parent Group be entitled to seek the remedy of specific performance of this Agreement other than as specifically set forth in Section 9.6. For the avoidance of doubt, while Parent may pursue both a grant of specific performance as permitted by Section 9.6. and the payment of the Company Termination Fee pursuant to Section 8.2(b) and any amounts pursuant to Section 8.2(d) (if any), under no circumstances shall Parent be permitted or entitled to receive both such grant of specific performance and payment of the Company Termination Fee (or any other money damages).
(iii) Notwithstanding anything to the contrary set forth in this Agreement, the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement under circumstances in which the Parent Termination Fee or the Company Termination Fee is payable pursuant to Section 8.2, payment of the Parent Termination Fee or the Company Termination Fee (as the case may be) as required hereunder shall constitute liquidated damages with respect to any claim for damages or any other claim which the Company or Parent (as the case may be) would otherwise be entitled to assert against Parent or Company (as the case may be) or its assets, or against any employees or equity holders of Parent or any other member of the Parent Group or the Company (as the case may be), with respect to any such termination of this Agreement, and shall constitute the sole and exclusive remedy with respect to any such termination of this Agreement. The Parties expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any such termination of this Agreement under circumstances in which the Parent Termination Fee or Company Termination Fee is payable pursuant to Section 8.2, the right to such payment (A) constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination of this Agreement, and (B) shall be in full and complete satisfaction of any and all damages arising as a result of any such termination of this Agreement.
(iv) The provisions of this Section 8.04(b8.2(f) are intended to be for the benefit of, and shall be enforceable by, each member of the Company Related PartiesParent Group.
Appears in 1 contract
Samples: Merger Agreement (China Customer Relations Centers, Inc.)
Limitations on Liabilities. (ai) In Notwithstanding anything to the contrary in this Agreement, in the event that Parent or Merger Sub fails to effect the Closing when required by Section 2.2 for any reason or no event shall any party reason or any of such party’s affiliates be entitled to seek the remedy of specific performance of they otherwise breach this Agreement other than as set forth in Section 9.07. For the avoidance of doubt(whether willfully, while the Company intentionally, unintentionally or Parent may pursue both a grant otherwise) or otherwise fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance as and only to the extent expressly permitted by Section 9.07 9.6, the Company's right to terminate this Agreement and the payment of receive the Parent Termination Fee pursuant to Section 8.03(c8.2(c) and the guarantee of such obligations pursuant to the Limited Guarantees Guarantee (subject to their terms, conditions and limitations) or the Company Termination Fee pursuant to Section 8.03(a), as applicable, any amounts pursuant to Section 8.03(d) (if any), under no circumstances shall the Company or Parent be permitted or entitled to receive both such grant of specific performance and the payment of the Parent Termination Fee, in the case of the Company, or the Company Termination Fee, in the case of Parent. If Parent pays the Parent Termination Fee pursuant to Section 8.03(c), then such payment shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its Subsidiariesthe Company Subsidiaries and all members of the Company Group (as defined below) against (A) Parent, its direct Merger Sub or the Sponsors, (B) the former, current and indirect future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, stockholders, assignees or successors (collectively, the “Company Related Parties”) against (i) Holdco, of Parent, Merger Sub and or the GuarantorsSponsors, (ii) any of their respective former, current or future holders of any equity, partnership or limited liability company interest in, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, partners, shareholder assignees or successors, (iiiC) any lender or prospective lender, lead arranger, arranger, agent or representative of or to HoldcoParent, Parent Merger Sub or Merger Sub, the Sponsors or (ivD) any holders or future holders of any equity, sharestock, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, affiliatesAffiliates, members, managers, general or limited partners, stockholders, assignees or successors of any of the foregoing (all persons described in (i) to (iv)clauses A – D, collectively, the “"Parent Related Parties”Group"), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) and none of the Parent Related Parties shall have any further liability or obligation relating failure to perform hereunder (whether willfully, intentionally, unintentionally or arising out of this Agreement otherwise) or the Transactions, including the other failure of the Merger to be consummated or for a breach or failure to perform hereunder (whether willfully, intentionally, unintentionally, knowingly, willfully unintentionally or otherwise) or otherwise). For the avoidance of doubt, none neither Parent nor any member of Holdco, Parent, Merger Sub or any the Parent Related Party Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions transactions contemplated hereby (including the Equity Financing Commitment LettersLetter, the Limited Guarantee and the Debt Financing Commitment Letter) other than the payment of the Parent Termination Fee pursuant to Section 8.03(c), and any amounts pursuant to Section 8.03(d8.2(c) (if any), and in no event shall any of the Company, its the Company Subsidiaries, the direct or indirect shareholders of the Company or any other Person, or any other of their respective Affiliates or Representatives (collectively, the "Company Related Party Group") seek, or permit to be sought, on behalf of any member of the Company Related PartyGroup, any monetary damages from any member of the Parent Related Party Group in connection with this Agreement or any of the Transactions transactions contemplated hereby (including the Equity Financing Commitment LettersLetter, the Limited Guarantee and Debt Financing Commitment Letter), other than (without duplication) from Parent or Merger Sub to the extent provided in Section 8.03(c), and any amounts pursuant to Section 8.03(d8.2(c) (if any), or the Guarantors Guarantor to the extent provided in the relevant Limited Guarantees, in each case without duplicationGuarantee. In no event shall the Company or any member of the Company, the Subsidiaries or any Company Related Party Group be entitled to seek the remedy of specific performance of this Agreement other than as specifically set forth in Section 9.079.6. For the avoidance of doubt, while the Company may pursue both a grant of specific performance as and only to the extent expressly permitted by Section 9.6 and the payment of the Parent Termination Fee pursuant to Section 8.2(c), under no circumstances shall the Company (or any member of the Company Group or any other Person) be permitted or entitled to receive both such grant of specific performance and payment of the Parent Termination Fee (or any other money damages).
(bii) Notwithstanding anything to the contrary in this Agreement, if in the event that the Company pays fails to effect the Closing for any reason or no reason or otherwise breaches this Agreement (whether willfully, intentionally, unintentionally or otherwise) or otherwise fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance as and only to the extent permitted by Section 9.6, Parent's right to terminate this Agreement and receive the Company Termination Fee pursuant to Section 8.03(a8.2(b) and/or the Parent Expenses pursuant to Section 8.2(d), then any such payment as applicable, shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any member of the Parent Related Parties Group against the Company Related Parties and none Group (other than the Rollover Shareholders pursuant to the terms of the members Rollover Agreement and/or the Voting Shareholders pursuant to the terms of Company Related Parties shall have the Voting Agreements), for any further liability loss or obligation relating damage suffered as a result of any breach of any representation, warranty, covenant or agreement (whether willfully, intentionally, unintentionally or otherwise) or failure to perform hereunder (whether willfully, intentionally, unintentionally or arising out of this Agreement, the transactions contemplated hereby otherwise) or the other failure of the Merger to be consummated. Parent agrees to cause any Action consummated (whether such Action is being prosecuted by Parent willfully, intentionally, unintentionally or any other member otherwise). For the avoidance of the Parent Related Parties) pending against doubt, neither the Company or nor any member of the Company Related Parties Group (other than the Rollover Shareholders pursuant to be dismissed with prejudice at such time as, the terms of the Rollover Agreement and/or the Voting Shareholders pursuant to the terms of the Voting Agreements) shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the transactions contemplated hereby, hereby (including the Company pays Financing and the Limited Guarantee) other than the payment of the Company Termination Fee pursuant to Section 8.03(a). The provisions 8.2(c) and/or the Parent Expenses pursuant to Section 8.2(d) and in no event shall any of this Section 8.04(b) are intended the members of the Parent Group seek, or permit to be for the benefit ofsought, and shall be enforceable by, each any monetary damages from any member of the Company Related PartiesGroup (other than the Rollover Shareholders pursuant to the terms of the Rollover Agreement and/or the Voting Shareholders pursuant to the terms of the Voting Agreements) in connection with this Agreement or any of the transactions contemplated hereby (including the Financing and the Limited Guarantee), other than (without duplication) from the Company to the extent provided in Section 8.2(b) or Section 8.2(d). For the avoidance of doubt, while Parent may pursue both a grant of specific performance as permitted by Section 9.6 and the payment of the Company Termination Fee and Parent Expenses pursuant to Section 8.2(b) and Section 8.2(d), respectively, under no circumstances shall Parent (or any member of the Parent Group or any other Person) be permitted or entitled to receive both such grant of specific performance and payment of the Company Termination Fee and/or the Parent Expenses (or any other money damages).
(iii) The Parties expressly acknowledge and agree that, with respect to any termination of this Agreement under circumstances in which any of the Company Termination Fee, the Parent Expenses or the Parent Termination Fee is payable pursuant to Section 8.2, payment of the Company Termination Fee, the Parent Expenses or the Parent Termination Fee, as required hereunder, shall constitute liquidated damages with respect to any claim for damages or any other claim which the Company, on the one hand, or Parent or Merger Sub, on the other hand, as the case may be, would otherwise be entitled to assert against Parent or Merger Sub, on the one hand, or the Company, on the other hand, as the case may be, or their respective assets, or against any of their respective employees or equityholders (without limiting any claims otherwise available to Parent against the Rollover Shareholders pursuant to the Rollover Agreement and/or the Voting Shareholders pursuant to the Voting Agreements) or any other member of the Parent Group or the Company Group, as the case may be, with respect to any such termination of this
Appears in 1 contract
Samples: Merger Agreement (China Fire & Security Group, Inc.)