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Common use of Procedure and Effect of Termination Clause in Contracts

Procedure and Effect of Termination. (a) If this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) below, none of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which made. (b) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;

Appears in 2 contracts

Samples: Asset Purchase Agreement (Mission Broadcasting Inc), Asset Purchase Agreement (Nexstar Broadcasting Group Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated hereby and by either or both of Buyer or Sellers the Ancillary Agreements pursuant to Section 12.110.1 hereof, prompt written notice thereof shall forthwith be given by the party so terminating to the other party to this Agreement, and this Agreement shall terminate and the transactions contemplated hereby and thereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default Seller or breach of its representations, warranties, covenants or obligations under this AgreementBuyer. If this Agreement is terminated as provided hereinpursuant to Section 10.1 hereof: (ia) Except as set forth in Section 12.2(bBuyer shall return all documents, work papers and other materials (and all copies thereof) below, none of obtained from Seller or the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) Company or any of the Division Entities or their respective Related Parties pursuant to this Agreement with respect to which termination has occurredemployees, except for the obligations of Sellers and Buyer (but not including Sellers’ agents or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions representatives relating to the transactions contemplated hereby as and by the Restructuring Agreements, whether so obtained before or after the execution hereof, to which termination has occurred the party furnishing the same, and all confidential information received by Buyer with respect to the Division shall be treated in accordance with Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section; (b) At the option of Seller, all Filings, applications and other submissions made pursuant to Sections 5.3, 5.4 and 5.5 hereof shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (b) (ic) If this Agreement is terminated: terminated and the transactions contemplated hereby are abandoned as described in this Section 10.2, this Agreement shall become null and void and of no further force or effect, except for the obligations provided for in Sections 5.6, 10.2, 12.3, 12.10 and 12.11 hereof, the confidentiality provision contained in Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section shall survive any such termination of this Agreement without limitation; and (Ad) by Sellers pursuant Such termination shall not be deemed to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material release and shall not relieve either party hereto from any liability for any breach or default violation by such party of any of its representations, warranties, covenants or agreements contained in this Agreement, nor shall such termination impair the rights of either party to (i) compel specific performance by the other party of its obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of Agreement or (ii) seek any other remedies at remedy under law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;equity.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Select Medical Corp), Stock Purchase Agreement (Healthsouth Corp)

Procedure and Effect of Termination. (a) If this Agreement is terminated In the event of termination and abandonment of the Merger by either the Parent, the Purchaser or both of Buyer or Sellers the Company pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given to the other party others, and this Agreement shall terminate and the transactions contemplated hereby Merger shall be abandoned abandoned, without further action by any of the parties hereto. The Purchaser agrees that any termination by the Parent shall be conclusively binding upon it, but subject whether given expressly on its behalf or not, and the Company shall have no further obligation with respect to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementit. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) below, none of the parties no party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the any other party (other than to this Agreement; provided that any termination shall be without prejudice to the extent rights of joint any party hereto arising out of any grossly negligent or willful breach by any other party of any covenant or agreement contained in this Agreement, and several liability among provided, further, that the Piedmont Companies as expressly obligations set forth in this Agreement) or Sections 9.2, 10.6 and 10.8 shall in any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which madeevent survive any termination. (b) In the event of a termination of this Agreement by Parent pursuant to Section 9.1(g)(ii) or by the Company pursuant to Section 9.1(f), then contemporaneously with such termination, the Company shall pay to Parent by wire transfer of immediately available funds to an account specified by Parent a non-refundable termination fee in an amount equal to $5.0 million plus reimbursement of all documented out-of-pocket costs and expenses incurred by Parent in connection with the transactions contemplated by this Agreement (but excluding any investment banking fees) in an amount not to exceed $1.0 million. (c) In the event of a termination of this Agreement by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), then contemporaneously with such termination, the Company shall pay to Parent by wire transfer of immediately available funds to an account specified by Parent a non-refundable termination fee in an amount equal to $5.0 million plus reimbursement of all documented out-of-pocket costs and expenses incurred by Parent in connection with the transactions contemplated by this Agreement (but excluding any investment banking fees) in an amount not to exceed $1.0 million, provided, however, that such payment shall be made only if (A) following the date of this Agreement and prior to the termination of this Agreement, any Company Takeover Proposal shall have been publicly announced or shall have become publicly known and shall not have been withdrawn prior to such termination, and (B) within nine (9) months following the termination of this Agreement, either a Company Takeover Proposal is consummated or the Company enters into an agreement providing for a Company Takeover Proposal and such Company Takeover Proposal is later consummated (with such payment to be made at or prior to the consummation of such Company Takeover Proposal). For purposes of this Section 9.2(c), the definition of "Company Takeover Proposal" and "Company Takeover Event" shall be modified (i) If this Agreement is terminated: (Aby replacing the 10% threshold used in Section 6.8(a) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive30%, and shall be paid, (ii) to not apply to the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu issuance of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreementnon-voting, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;non-convertible preferred securities.

Appears in 2 contracts

Samples: Merger Agreement (Nco Group Inc), Merger Agreement (RMH Teleservices Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated by either or both of Buyer or Sellers this Agreement pursuant to Section 12.17.1 of this Agreement, prompt written notice thereof shall forthwith be given by Sellers, on the one hand, or Buyer, on the other hand, so terminating to the other party and this Agreement shall terminate and the transactions contemplated hereby by this Agreement shall be abandoned abandoned, without further action by any of the parties heretoSellers, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementBuyer. If this Agreement is terminated as provided hereinpursuant to Section 7.1 of this Agreement: (ia) Except unless the basis of a termination is as set forth in Section 12.2(b7.2(c) below, none for failure of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly condition set forth in Sections 6.2(a) or (b), each party shall redeliver all documents, work papers and other materials of the other parties relating to the transactions contemplated by this Agreement) , whether so obtained before or after the execution of this Agreement, to the party furnishing the same or, upon prior written notice to such party, shall destroy all such documents, work papers and other materials and deliver notice to the parties seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective Related Parties pursuant party to this Agreement with respect to which termination has occurred, except for the obligations other party shall be treated in accordance with the Confidentiality Agreement and Section 5.2(b) of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andAgreement; (iib) All all filings, applications and other submissions relating made pursuant to the transactions contemplated hereby as to which termination has occurred this Agreement shall, at the option of Sellers, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bc) (i) If there shall be no liability or obligation under this Agreement on the part of Sellers, the Companies or Buyer or any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives, except that Sellers or Buyer, as the case may be, shall have liability to the other party if the basis of termination is terminated: (A) fraud or a willful, material breach by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d)Buyer, provided thatas the case may be, with respect to this clause (B), only if Buyer is in material breach of one or default more of its representations, warranties, covenants or obligations under the provisions of this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree except that the liquidated damages obligations provided for in this Section are intended to limit and Sections 5.5, 5.8 and 10.1 of this Agreement and in the claims that the Piedmont Companies may have against Buyer;Confidentiality Agreement shall survive any such termination.

Appears in 2 contracts

Samples: Stock Purchase Agreement (R H Donnelley Corp), Stock Purchase Agreement (Sprint Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated and abandonment of the transactions contemplated hereby by either or both of Buyer or Sellers the parties pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any either of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(bupon request therefor, each party will redeliver all documents, work papers and other material of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same; (ii) below, none each party hereto will use its best efforts to prevent disclosure to third Persons of all information received by either party with respect to the business of the parties other party or its subsidiaries (other than information which is a matter of public knowledge or which has heretofore been or is hereafter published in any publication for public distribution or filed as public information with any Government entity) except (i) as may be required by Law; and (ii) as is permitted by this Agreement; and (iii) neither party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties Agreement pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 this Section 9.2, provided that nothing herein shall relieve any party from liability for its willful breach of this Agreement (Sellers’ Broker)including, 5.6 (Buyer’s Broker)but not limited to, 7.3 (Confidentiality), 7.7 (Non-Solicitation), Section 5.4 and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (MiscellaneousSection 5.5) and this Article 12; and (ii) All filings, applications and other submissions relating to or of the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which madeConfidentiality Agreement. (b) (i) If In addition, in the event of termination of this Agreement is terminated: (A) and abandonment of the transactions contemplated hereby by Sellers the Parent or any Seller pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d9.1(g), provided that, then simultaneously with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paidany such termination, the Escrow Amount Parent shall deliver, or shall cause to be delivered, to the Buyer an amount of cash equal to $25,000,000 by wire transfer of immediately available funds to a bank account designated in writing by the Buyer in any bank in the continental United States or by such other means as liquidated damages, and such liquidated damages shall be are agreed in writing by the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer Parent and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 2 contracts

Samples: Acquisition Agreement (Fairchild Corp), Acquisition Agreement (Fairchild Corp)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.17.1 hereof, prompt written notice thereof shall forthwith be given by Seller, on the one hand, or Buyer, on the other hand, so terminating to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of Seller, on the parties heretoone hand, but subject to and without limiting any of or Buyer, on the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementother hand. If this Agreement is terminated as provided hereinpursuant to Section 7.1 hereof: (ia) Except as set forth in Section 12.2(b) beloweach party shall redeliver all documents, none work papers and other materials of the other parties relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the party furnishing the same or, upon prior written notice to such party, shall destroy all such documents, work papers and other materials and deliver notice to the parties seeking destruction of such documents that such destruction has been completed, and all confidential information received by any party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation with respect to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth shall be treated in this Agreementaccordance with Section 5.2(b) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andhereof; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of Seller, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bc) (i) If this Agreement there shall be no liability or obligation hereunder on the part of Seller or Buyer or any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives, except that Seller or Buyer, as the case may be, shall have liability to the other party if the basis of termination is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in a material breach by Seller or default Buyer, as the case may be, of its representations, warranties, covenants one or obligations under more of the provisions of this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree except that the liquidated damages obligations provided for in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;7.2 and Section 9.1 hereof shall survive any such termination.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Kinark Corp), Stock Purchase Agreement (Kinark Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given to the other party and party, and, except as set forth in this Section 8.2, this Agreement shall terminate and be void and have no effect and the transactions contemplated hereby shall be abandoned without further action by abandoned; provided that (x) the termination of this Agreement shall not relieve DuPont from liability for any Intentional Breach of the parties hereto, but this Agreement and (y) subject to and without limiting any Section 8.2(d) (including the limitation of the rights of the parties liability set forth therein) in the case of Buyer, the termination of this Agreement if under circumstances in which the Reverse Termination Fee is not payable pursuant to Section 8.2(b) shall not relieve Buyer from liability for damages incurred by DuPont or its Subsidiaries as a party is in default or breach result of its representations, warranties, covenants or obligations under any Intentional Breach of this AgreementAgreement by Buyer. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) below, none of the parties each party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation)will destroy, and 13.2 will direct its agents (Governmental Filing Fees)including attorneys and accountants) to destroy, 13.3 (Expenses)all documents, Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications work papers and other submissions material of each party hereto relating to the transactions contemplated hereby as (other than any documents, work papers and other material relating to which termination has occurred shallany payments pursuant to this Section 8.2(a), Section 8.2(b) or Section 8.2(d)), whether obtained before or after the execution hereof; (ii) all Information received by Buyer with respect to the extent practicablebusiness, be withdrawn from operations, Assets or financial condition of DuPont or its Subsidiaries or the Governmental Authority or other Person Joint Ventures shall remain subject to which madethe Confidentiality Agreement; (iii) notwithstanding the termination hereof, the Confidentiality Agreement, the Limited Guarantees and the following Sections of this Agreement shall remain in full force and effect: (A) Sections 3.16 and 4.4 relating to brokers, (B) the penultimate sentence of Section 5.2 relating to confidentiality matters, (C) the expense reimbursement and indemnification obligations of Buyer in Section 5.21(d), (D) Section 5.21(e), (E) Section 9.12 relating to certain expenses, (F) Section 8.1 and this Section 8.2 and (G) Article IX. (b) In the event DuPont shall terminate this Agreement in accordance with Section 8.1(e) or Section 8.1(f), Buyer shall pay, or cause to be paid, to DuPont an amount (the "Reverse Termination Fee") equal to $330,750,000 by wire transfer of immediately available funds not later than the second (2nd) Business Day following such termination, it being understood that in no event shall the Reverse Termination Fee be payable on more than one occasion, whether by Buyer or the Guarantors under the Limited Guarantees. The parties agree that, in the circumstances in which the Reverse Termination Fee is payable, the Reverse Termination Fee is liquidated damages and not a penalty, and the payment of the Reverse Termination Fee in such circumstances is supported by due and sufficient consideration. (c) The parties acknowledge that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter into this Agreement; accordingly, if either party fails to promptly pay the amount due pursuant to Section 8.2(b) or as a result of its Intentional Breach, and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party, such first party shall pay to the other party its reasonable out-of-pocket costs and expenses (including attorneys' fees) in connection with such suit, together with interest on such amount or portion thereof at a rate per annum equal to 8% for the period from the date such payment was required to be made through the date of payment. (d) Subject to DuPont's right to seek specific performance pursuant to Section 9.7 and any order pursuant thereto, (i) If in any circumstance in which DuPont is permitted to terminate this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); 8.1(e) or (BSection 8.1(f) by Sellers and receive the Reverse Termination Fee pursuant to Section 12.1(d8.2(b), provided that, with respect DuPont's termination of this Agreement pursuant to this clause such Sections and receipt of the Reverse Termination Fee pursuant to Section 8.2(b) and any payments pursuant to Buyer's expense reimbursement and indemnification obligations set forth in Section 5.21(d) and Section 5.21(e) (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, such reimbursement and shall be paidindemnification obligations, the Escrow Amount as liquidated damages, and such liquidated damages "Buyer Financing Cooperation Payment Obligations") shall be the Piedmont Companies’ sole and exclusive remedy of DuPont and shall be its Affiliates against (A) Buyer, (B) the Guarantors under the Limited Guarantees, (C) the Financing Source Parties and (D) any of their respective, direct or indirect, former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates, employees, agents, other Representatives or assignees (such Persons referenced in lieu clauses (A) through (D), collectively the "Buyer Related Parties") for any Loss suffered as a result of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of any representation, warranty, covenant or default under agreement in this Agreement, the difficulty of proof of losstransactions contemplated hereby, the inconvenience and infeasibility of otherwise obtaining an adequate remedyLimited Guarantees or the Financing Commitments, and the value upon such termination by DuPont and receipt of the Reverse Termination Fee and the Buyer Financing Cooperation Payment Obligations, none of the Buyer Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions to be consummated hereunder. The parties agree contemplated hereby, the Limited Guarantees or the Financing Commitments (except that the liquidated applicable Buyer Related Parties shall remain obligated for, and DuPont and its Subsidiaries may be entitled to remedies with respect to, any breach of the Confidentiality Agreement and any reimbursement obligations of Buyer pursuant to Section 8.2(c)), whether in equity or at law, in contract, in tort or otherwise, and (ii) in connection with any damages provided suffered as a result of any Intentional Breach of this Agreement by Buyer other than in a circumstance in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b), DuPont agrees that the maximum aggregate Liability of Buyer shall be limited to the amount of such damages up to an amount equal to the sum of the Reverse Termination Fee, the Buyer Financing Cooperation Payment Obligations and any amounts described in Section 8.2(c), and in no event shall DuPont be entitled to seek or obtain any recovery or judgment in excess of such amount. In no event shall DuPont be entitled to seek or obtain any recovery or judgment in excess of the sum of the Reverse Termination Fee, the Buyer Financing Cooperation Payment Obligations and any amounts described in Section 8.2(c) against any of the Buyer Related Parties or any of their respective assets, and in no event shall DuPont be entitled to seek or obtain any other damages of any kind against any Buyer Related Party (other than the Buyer and the Guarantors for damages suffered as a result of any Intentional Breach of this Agreement by Buyer other than in a circumstance in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b), which shall be subject to the limitations set forth in this Section are intended 8.2(d)), including consequential, special, indirect or punitive damages, for or with respect to, this Agreement or the Limited Guarantees or the transactions contemplated hereby and thereby (including, any breach by Buyer), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure; provided, however, that this Section 8.2(d) shall not limit the right of the parties hereto to seek specific performance of this Agreement pursuant to, and subject to the limitations in, Section 9.7 prior to the termination of this Agreement; and provided, further, in no event will DuPont be entitled to both the payment of (x) the Reverse Termination Fee and (y) the grant of specific performance pursuant to, and subject to the limitations in, Section 9.7, which grant results in the consummation of the Closing as contemplated by this Agreement. In light of the difficulty of accurately determining actual damages with respect to the foregoing, upon any such termination of this Agreement, the payment of the Reverse Termination Fee (plus the Buyer Financing Cooperation Payment Obligations and, in the case the Reverse Termination Fee is not timely paid, the amounts described in Section 8.2(c)), which together constitute a reasonable estimate of the monetary damages that will be suffered by DuPont by reason of breach or termination of this Agreement or any of the Limited Guarantees in circumstances in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b), shall be in full and complete satisfaction of any and all monetary damages of DuPont arising out of or relating to this Agreement and the Limited Guarantees, the transactions contemplated hereby and thereby (including, any breach by Buyer), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement, and any claims or actions under applicable Law arising out of any such breach, termination or failure, in each case, in circumstances in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b); provided, however, this Section 8.2 shall not limit the right of the parties hereto to seek specific performance pursuant to, and subject to the limitations in, Section 9.7 prior to any valid termination of this Agreement. Notwithstanding anything herein to the contrary, DuPont and its Affiliates hereby waive any and all rights and claims against any Buyer Related Party (other than Buyer and the Guarantors in connection with the Limited Guarantees) in connection with this Agreement or the Debt Commitment Letters, whether at Law or in equity, in contract, in tort or otherwise; provided that DuPont shall be entitled to seek specific performance to the Piedmont Companies may have against Buyer;extent set forth in, and subject to the terms and limitations set forth in, Section 9.7, prior to any valid termination of this Agreement.

Appears in 1 contract

Samples: Purchase Agreement (Dupont E I De Nemours & Co)

Procedure and Effect of Termination. (a) 8.2.1 Termination of this Agreement by either Buyer or Seller shall be by delivery of a Notice to the other Party. Such Notice shall state the termination provision in this Agreement that such terminating Party is claiming provides a basis for termination of this Agreement. Termination of this Agreement pursuant to the provisions of Section 8.1 shall be effective upon and as of the date of delivery of such Notice as determined pursuant to Section 9.2. 8.2.2 If a Party waives compliance with any of the conditions, obligations or covenants contained in this Agreement, the waiver will be without prejudice to any of its rights of termination in the event of non-fulfilment, non-observance or non-performance of any other condition, obligation or covenant in whole or in part. 8.2.3 If this Agreement is terminated by either or both terminated, the Parties are released from all of Buyer or Sellers pursuant to Section 12.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or their obligations under this Agreement. If , except that each Party’s obligations under Sections 5.2, 7.2, 8.2, 8.3, 9.1, 9.2, 9.3, 9.5, 9.9, 9.10, 9.11, 9.14 and 9.15 will survive. 8.2.4 As soon as practicable following a termination of this Agreement is terminated as provided herein: for any reason, but in no event more than thirty (i30) Except as set forth in Section 12.2(b) belowdays after such termination, none of the parties hereto nor any of their respective partnersBuyer and Seller shall, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurredpracticable, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All withdraw all filings, applications and other submissions relating to the transactions contemplated hereby as by this Agreement filed or submitted by or on behalf of such Party to which termination has occurred shall, to the extent practicable, be withdrawn from the any Governmental Authority or other Person to which madePerson. 8.2.5 Notwithstanding Section 8.2.3, in the event of a termination of this Agreement by Seller pursuant to Section 8.1.2 or Section 8.1.8(a), then Buyer and Seller shall, within two (2) Business Days after the date of such termination, deliver joint written instructions (“Joint Written Instructions”) to the Escrow Agent directing the Escrow Agent to deliver to Seller an amount equal to the Deposit plus any accrued investment interest thereon. Buyer acknowledges that the agreements contained in this Section 8.2.5 are an integral part of the Transactions, and that without these agreements, Seller would not have entered into this Agreement; accordingly, if Xxxxx fails to deliver such Joint Written Instructions or pay any amount due pursuant to this Section 8.2.5 and, in order to obtain the payment, Xxxxxx commences a Litigation which results in a judgment against Buyer for any payment set forth in this Section 8.2.5, Buyer shall pay Seller its costs and expenses (including attorneys’ fees and disbursements) in connection with such Litigation, together with interest on such payment at 3% per annum (for the avoidance of doubt, using the payment described in this sentence as the applicable payment) through the date such payment was actually received. 8.2.6 Notwithstanding Section 8.2.3 and subject to Section 8.2.5, in the event of a termination of this Agreement other than by Seller pursuant to Section 8.1.2 or Section 8.1.8(a), then Buyer and Seller shall, within two (2) Business Days after the date of such termination, deliver Joint Written Instructions to the Escrow Agent directing the Escrow Agent to deliver to Buyer an amount equal to the Deposit plus any accrued investment interest thereon (less any fees or expenses owing to the Escrow Agent). 8.2.7 In the event of termination of this Agreement pursuant to Section 8.1: (a) Buyer shall return all documents and other material received from Seller relating to Seller and its Subsidiaries, the Products, the Purchased Assets or the Transactions, whether so obtained before or after the execution hereof, to Seller; and (b) (i) If this Agreement is terminated: (A) all confidential information received by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, Buyer with respect to this clause (B)Seller and its Subsidiaries, only if Buyer is the Products, the Purchased Assets or the Transactions shall be treated in material breach or default accordance with the Confidentiality Agreement, and with the Confidentiality Agreement remaining in full force and effect in accordance with its terms, notwithstanding the termination of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Asset Purchase Agreement (NanoString Technologies Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given by the Parent and the Sellers, on the one hand, or Buyer, on the other hand, so terminating to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties heretoParent, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default Sellers, or breach of its representations, warranties, covenants or obligations under this AgreementBuyer. If this Agreement is terminated as provided hereinpursuant to Section 8.1 hereof: (ia) Except as set forth in Section 12.2(b) beloweach party shall redeliver all documents, none work papers and other materials of the other parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation relating to the other party (other than transactions contemplated hereby, whether so obtained before or after the execution hereof, to the extent party furnishing the same or, upon prior written notice to such party, shall destroy all such documents, work papers and other materials and deliver notice to the parties seeking destruction of joint such documents that such destruction has been completed, and several liability among the Piedmont Companies as expressly set forth in this Agreement) or all confidential information received by any of their respective Related Parties pursuant to this Agreement party hereto with respect to which termination has occurredany other party shall be treated in accordance with the Confidentiality Agreement; provided, except for that the obligations confidential information of Buyer provided to Sellers and Parent and their Affiliates and representatives shall be treated as confidential in the same manner and to the same extent as the confidential information of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated is protected in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andsuch Confidentiality Agreement; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of the Parent and the Sellers, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) termination of this Agreement pursuant to Section 8.1 hereof shall not be an exclusive remedy for default hereunder on the part of the Parent and the Sellers, on the one hand, and Buyer, on the other, and such parties shall retain all rights at law and in equity; provided, however, that if such termination is (i) If pursuant to Section 8.1(a), Section 8.1(b) or Section 8.1(f) hereof, (ii) by Buyer pursuant to Section 7.3(g) hereof provided that Sellers are not in breach of any representation or warranty contained in Section 2.14 hereof, or (iii) by Buyer pursuant to Section 7.3(a) hereof based on the occurrence of an event, circumstance or action between the date of execution of this Agreement is terminated: and the Closing, and such event, circumstance or action does not arise from or relate to (A) by a breach of a representation and warranty of Sellers pursuant to Section 12.1(c); or and/or Parent at the time of execution of this Agreement, (B) a breach by Sellers pursuant to Section 12.1(d)and/or Parent of any covenant set forth in Article V hereof, provided that, with respect to this clause or (B), only if Buyer is in material breach C) any act of fraud or default willful misconduct on the part of its representations, warranties, covenants or obligations under this AgreementSellers and/or Parent and/or any of their respective Affiliates, then Sellers termination of this Agreement shall have be Buyer’s, on the right to receiveone hand, and shall be paidSellers’ and Parent’s, on the Escrow Amount as liquidated damagesother hand, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy remedy; and (d) the obligations provided for in Section 6.6, and Articles VIII and XI hereof and shall be in lieu of survive any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;termination.

Appears in 1 contract

Samples: Asset Purchase Agreement (Aep Industries Inc)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated and abandonment of the transactions contemplated hereby by either or both of Buyer or Sellers the parties pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given by the terminating party to the other party (it being understood that notice to Teligent shall have the same effect as notice to all of the Sellers) and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (ia) Except as set forth said termination shall be the sole remedy of the parties hereto with respect to breaches of any covenant, representation or warranty contained in Section 12.2(b) below, this Agreement and none of the parties hereto nor any of their respective partnerstrustees, directors, officersofficers or Affiliates, managersas the case may be, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties trustees, directors, officers or Affiliates, as the case may be, pursuant to this Agreement with respect to which termination has occurredAgreement, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) in each case as stated in this Section 9.2, Section 10.14 and in Sections 4.18 (Sellers’ Broker7.4(b), 5.6 (Buyer’s Broker7.5, 7.8(a), 7.3 (Confidentiality), 7.7 (Non-Solicitation)7.9 and 7.15, and 13.2 (Governmental Filing Fees)upon a willful breach by a party, 13.3 (Expenses)in which case the non-breaching party shall have all rights and remedies existing at law or in equity; provided, Article 14 (Miscellaneous) and however, the Sellers shall not be responsible for liability for any misrepresentation or breach of any warranty or covenant by the Sellers contained in this Article 12; andAgreement prior to the time of such termination; (iib) All all filings, applications and other submissions relating made pursuant to the transactions contemplated hereby as to which termination has occurred shallthis Agreement, to the extent practicable, shall be withdrawn from the Governmental Authority agency or other Person to which they were made.; and (bc) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default all Confidential Information from any and all of its representations, warranties, covenants or obligations under this Agreement, then the Sellers shall have the right be returned to receiveTeligent, and all Confidential Information from the Buyer shall be paid, returned to the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Asset Purchase Agreement (Teligent Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the Acquisition pursuant to Section 12.110.1 hereof, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Party, and this Agreement shall terminate and the transactions contemplated hereby Acquisition shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 10.1 hereof: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the Acquisition, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties shall be treated as confidential in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 6.2(a), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of Seller, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bc) except for the payment of fees and expenses for which a Party is liable hereunder, there shall be no liability or obligation hereunder on the part of Seller, Dresser, Buyer or any of their respective directors, officers, employees, Affiliates, agents, advisors or representatives, except that (i) If this Agreement if the basis of termination is terminated: (A) a willful breach by Sellers pursuant to Section 12.1(c); Seller, Dresser or (B) by Sellers pursuant to Section 12.1(d)Buyer, provided thatas the case may be, with respect to this clause (B), only if Buyer is in material breach of one or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light more of the anticipated harm which would be caused by Buyer’s breach provisions of or default under this Agreement, the difficulty of proof of loss, breaching Party shall be liable to the inconvenience and infeasibility of otherwise obtaining an adequate remedynon-breaching Party, and (ii) the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for in this Section are intended to limit 10.2 and Sections 8.1, 8.2, 8.3, 12.1, 12.2, 12.3, 12.7, and 12.12 hereof and the claims that the Piedmont Companies may have against Buyer;Confidentiality Agreement shall survive any such termination.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Dresser Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.18.1 or a termination of this Agreement pursuant to Section 8.4, prompt written notice thereof shall forthwith be given to the all other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided hereinParties and: (ia) Except as set forth in Section 12.2(b) below, none Each of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Purchaser and the Seller will immediately at its expense return to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurredParty all documents, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications work papers and other submissions material of the other Party and its Affiliates relating to the transactions contemplated hereby obtained from that other Party or its Affiliates, whether so obtained before or after the execution hereof, and all copies, extracts or other reproductions, in whole or in part thereof which may have been by or on behalf of the Purchaser or the Seller or their respective representatives, as to which termination has occurred shallthe case may be, and shall deliver to the extent practicableother Party or destroy all notes or memorandum or other stored information of any kind containing, reflecting or derived from such documents, work papers and other material, except that one archival copy may be withdrawn retained by each Party's outside counsel or in-house counsel. The return or destruction, as applicable, of such documents, work papers and other material (and all copies, extracts or other reproductions in whole or in part thereof) pursuant to this Section 8.2(a) shall be certified in writing by an authorized officer supervising the same. Notwithstanding such return or destruction, each of the Purchaser and the Seller shall not use or disclose to any Person any confidential information derived from the Governmental Authority or documents, work papers and other Person to which made.material of the other Party and shall be responsible for preventing the disclosure of any such information as provided in Section 5.6(b) and (c); (b) All obligations of the Parties hereunder shall terminate, except for the confidentiality obligations under the Confidentiality Agreement and the Prior Confidentiality Agreement, Article X [Dispute Resolution] and Sections 5.6(b) and (ic) If this Agreement is terminated: (A) by Sellers [Confidentiality], 8.2 [Procedure and Effect of Termination], 11.8 [Expenses] and 11.16 [Publicity]; provided, however, that termination pursuant to such Section 12.1(c); 8.1 and 8.4 will not relieve a defaulting or breaching Party from any liability to the other Party hereto, unless expressly otherwise provided herein; (Bc) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach The Purchaser or default of its representations, warranties, covenants Permitted Transferees or obligations under this Agreement, then Sellers shall have the right to receiveThird Party transferees shall, and shall be paidcause their Affiliates to, assign any rights it or its Affiliates may have pursuant to the Escrow Amount as liquidated damages, and Trademarks to the Seller or such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under Seller's Affiliates as the Seller may designate; and (d) Other than as set forth in this Article VIII, neither Party hereto shall have any further obligation pursuant to this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Share Purchase Agreement (Medicis Pharmaceutical Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers a party hereto entitled to terminate this Agreement pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given by the terminating party to the other party hereto, and this Agreement shall thereupon terminate and become void and have no effect, and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to except that the provisions of Sections 5.1(b), 9.2(b), and without limiting 10.1 through 10.14 shall survive the termination of this Agreement; provided, however, that such termination shall not relieve any party hereto of the rights any liability for any willful breach of the parties set forth any covenant or agreement of such party contained in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein. (b) In the event that: (i) Except as (A) Parent or the Company shall have terminated this Agreement pursuant to Section 9.1(d), (B) at or prior to the Special Meeting, any Person (other than Parent, Merger Sub or their respective Affiliates) shall have made public an Acquisition Proposal and (C) within one (1) year of termination of this Agreement, the Company executes an Acquisition Agreement; or (ii) this Agreement is terminated pursuant to Section 9.1(e) or 9.1(f), then the Company shall pay to the Persons listed in Section 9.2(b) of the Parent Disclosure Schedule an aggregate fee of $22.4 million (in the individual amounts set forth opposite each such Person’s name in such Section 12.2(b) below, none 9.2 of the parties hereto Parent Disclosure Schedule) by wire transfer of immediately available funds no later than five business days after such termination (in the case of clause (ii) above) or on the date of entry into such Acquisition Agreement (in the case of clause (i) above). The Company acknowledges that the agreements contained in this Section 9.2(b) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, the Parent and Merger Sub would not enter into this Agreement. The Company and Parent, on behalf of themselves and their Affiliates, agree that any payment required to be made pursuant to Section 9.2(b) shall be in full satisfaction of any expense reimbursement claims and shall represent liquidated damages and not a penalty and shall be the exclusive remedy of the Parent and its Affiliates for the Loss suffered as a result of the failure of the Merger to be consummated and upon payment in accordance herewith neither the Company nor its Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated herein. For the purpose of this Section 9.2(b) references to “Acquisition Proposal” (including its use in determining whether there exists an Acquisition Agreement) shall have the meaning ascribed to such term, except that references to “twenty percent (20%)” shall be deemed to be references to “fifty percent (50%)”. (c) In the event that this Agreement is terminated by the Company pursuant to Section 9.1(g), then the Parent shall pay to Company a fee of $30.0 million by wire transfer of immediately available funds no later than five business days after such termination. The Parent acknowledges that the agreements contained in this Section 9.2(c) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, the Company would not enter into this Agreement. The Company and Parent, on behalf of themselves and their respective partnersAffiliates, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or agree that any payment required to be made pursuant to Section 9.2(c) shall be in full satisfaction of any expense reimbursement claims and shall represent liquidated damages and not a penalty and shall be the exclusive remedy of the Company and its Affiliates for the Loss suffered as a result of the failure of the Merger to be consummated and upon payment in accordance herewith neither the Parent nor its Affiliates (eachincluding without limitation the Equity Sponsors, a “Related Party”affiliates and Merger Sub) shall have any further liability or further obligation to the other party (other than to the extent relating or arising out of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which madeherein. (b) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;

Appears in 1 contract

Samples: Merger Agreement (Central Parking Corp)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.18.1(b) hereof, prompt written notice thereof shall forthwith be given by the party so terminating to the other party hereto and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of Sellers, on the parties heretoone hand, but subject to and without limiting any of or Buyer, on the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementother hand. If this Agreement is terminated as provided hereinpursuant to Section 8.1 hereof: (ia) Except as set forth in Section 12.2(b) beloweach party shall redeliver or destroy all documents, none work papers and other materials of the other parties relating to the transactions contemplated 113 hereby, whether so obtained before or after the execution hereof, to the party furnishing the same, and all Confidential Information received by any party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation with respect to the other party (other than to shall be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andSection 6.18 above; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the mutual agreement of Buyer and Revlon, and to the extent practicable, be withdrawn from the Governmental Authority Entity or other Person to which made.; and (bc) (i) If this Agreement is terminated: (A) there shall be no Liability hereunder on the part of Sellers or Buyer or their respective Affiliates or any of their respective directors, officers, employees, agents or representatives, except that Sellers or Buyer, as the case may be, shall have Liability to the other party for any breach by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d)Buyer, provided thatas the case may be, with respect to this clause (B), only if Buyer is in material breach of one or default more of its representations, warranties, the covenants or obligations under agreements of this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree except that the liquidated damages obligations provided for in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;Sections 6.18, 8.2(a), 8.2(b) and 10.1 hereof shall survive any such termination.

Appears in 1 contract

Samples: Purchase Agreement (Revlon Inc /De/)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated and abandonment of the transactions contemplated hereby by either or both of Buyer or Sellers the parties pursuant to Section 12.18.1, prompt written notice thereof shall forthwith be given by a party so terminating to the other party and parties and, subject to the provisions of Section 8.3, this Agreement shall forthwith terminate and shall become null and void and of no further effect, and the transactions contemplated hereby shall be abandoned without further action by any of the parties heretoCompany, but subject to Seller and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementBuyer. If this Agreement is terminated as provided hereinpursuant to Section 8.1: (ia) Except as set forth in Section 12.2(b) beloweach party shall redeliver all documents, none work papers and other materials of the other parties hereto nor relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the party furnishing the same, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation party with respect to the other party (other than to shall be treated in accordance with the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties Confidentiality Agreement pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 5.2(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of Seller, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bc) there shall be no liability or obligation hereunder on the part of the Company, Seller or Buyer or any of their respective directors, officers, employees, Affiliates, controlling Persons, agents, advisors or Representatives, except that (i) If this Agreement the Company, Seller or Buyer, as the case may be, may have liability to the other party if the basis of termination is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d)a willful, provided that, with respect to this clause (B), only if Buyer is in material breach by the Company, Seller or default Buyer, as the case may be, of its representations, warranties, covenants one or obligations under more of the provisions of this Agreement, then Sellers and (ii) the obligations provided for in Sections 5.2(b), 8.2, 8.3, 10.5, 10.7 and 10.8 shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and survive any such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;termination.

Appears in 1 contract

Samples: Stock Purchase Agreement (Rexnord Corp)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the Transactions pursuant to Section 12.18.1, prompt written notice thereof shall will forthwith be given by the Party so terminating to the other party Party, and this Agreement shall will terminate and the transactions contemplated hereby shall will be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 8.1: (a) each Party will: (i) Except as redeliver all documents, work papers and other materials of the other Party relating to the Transactions, whether obtained before or after the execution hereof, to the Party furnishing the same or (ii) upon prior written notice to such Party, will destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, in each case of sub-clause (i) and (ii), subject to the same exceptions set forth out in Section 12.2(b) below, none 6 of the parties hereto nor Confidentiality Agreement, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties will be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 6.2(c), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shallor requests for consents or waivers made pursuant hereto will, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) notwithstanding any provision in this Agreement to the contrary, there will be no Liability hereunder on the part of any party hereto or any of their respective directors, officers, employees, Affiliates, agents or representatives, except that (i) If this Agreement if the basis of termination is terminated: (A) a breach by Sellers pursuant to Section 12.1(c); a party hereto of one or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default more of its representations, warranties, covenants or obligations under the provisions of this Agreement, then Sellers shall have the right breaching party will be liable to receivethe relevant non-breaching party, and (ii) the obligations provided for in this Section 8.2, Section 6.2(c) (Access to Information), Section 6.5 (Public Announcements), Section 10.1 (Fees and Expenses), Section 10.2 (Notices), Section 10.3 (Severability), Section 10.8 (Consent to Jurisdiction), Section 10.9 (Waiver of Jury Trial) and Section 10.10 (Governing Law) hereof will survive any such termination; (d) notwithstanding anything set forth in this Agreement or the Confidentiality Agreement to the contrary, the Confidentiality Agreement will survive the termination of this Agreement for a period of five years following the date of such termination and the term of the Confidentiality Agreement will be automatically amended to be extended for such additional five year period; (e) if this Agreement is terminated by Seller or Buyer pursuant to Section 8.1(d) and all conditions to the obligations of the Parties set forth in Article VII (other than the condition set out in Section 7.1(c) (CFIUS Approval) and those conditions that by their nature are to be fulfilled at the Closing, but subject to the satisfaction or waiver of such conditions) have been satisfied or waived in accordance with this Agreement, then Buyer shall pay, or cause to be paid, to Seller an amount equal to $120,000,000 (such payment, the Escrow Amount “Termination Fee”), by wire transfer of immediately available funds within five Business Days following such termination to a bank account nominated by Seller as liquidated damagesat the date of termination. The Parties acknowledge and agree that (i) the fees and other provisions of this Section 8.2 are an integral part of the Transactions, (ii) the Termination Fee, if and such when paid, shall constitute liquidated damages shall be (and not a penalty) and the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of Seller, any other remedies at law Company Group Member or in equity to which the Piedmont Companies might otherwise be entitled. any of their respective Affiliates against Buyer and its Affiliates for all Liabilities, losses and damages in respect of this Agreement or the Piedmont Companies each acknowledges Transactions and agrees that (iii) without these agreements, the Parties would not have entered into this Agreement. If Buyer fails to pay the Termination Fee when due, (x) such liquidated damages amount fee shall accrue interest for the period commencing on the sixth Business Day following the termination of this Agreement through the date the Termination Fee is reasonable actually paid, at a rate equal to (i) the rate of interest published from time to time by The Wall Street Journal, Eastern Edition, as the “prime rate” at large U.S. money center banks on the date this Agreement is terminated plus (ii) two percentage points (2.0%) and (y) Buyer shall also pay to Seller in light addition to the Termination Fee and such other amounts, all of Seller’s costs and out-of-pocket expenses (including attorneys’ fees) incurred in connection with all actions to collect the Termination Fee and such other amounts. Upon payment of the anticipated harm which would be caused by Buyer’s breach Termination Fee and such other amounts to Seller pursuant to Section 8.2(e), none of Buyer or default under its Affiliates shall have any further liability to Seller, any Company Group Member or any of their respective Affiliates relating to or arising out of this Agreement, Agreement or the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedyTransactions, and for the value avoidance of doubt, no remedy under Section 10.12 will be available to the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;Seller, any Company Group Member or any of their respective Affiliates.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Roper Technologies Inc)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of the Company and Buyer or Sellers pursuant to Section 12.19.1 hereof, prompt written notice thereof shall forthwith be given by the terminating party to the other party hereto, and this Agreement shall thereupon terminate and become void and have no effect, and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any except that the provisions of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: Sections 5.2 (i) Except as set forth in Section 12.2(b) below, none of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerPublic Announcements), 5.6 (Buyer’s Broker), 7.3 5.9 (Confidentiality), 7.7 9.3 (Non-SolicitationExpenses and Taxes), 10.2 (Governing Law), and 13.2 10.4 (Governmental Filing FeesNotices), 13.3 (Expenses)and any related definitional, Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority interpretive or other Person to which madeprovisions necessary for the logical interpretation of such provisions, shall survive the termination of this Agreement; provided, however, that such termination shall not relieve any party hereto of any liability for any breach of this Agreement. (b) In the event that (i) If this Agreement is terminated: (A) by Sellers terminated pursuant to Section 12.1(c9.1(b) or Section 9.1(f); , or (Bii) Buyer terminates this Agreement due to a breach by Sellers the Company of any representation, warranty, covenant or agreement pursuant to Section 12.1(d9.1(d) as applicable to the Company, then Buyer shall become entitled to receive from the Company a termination fee of $1,000,000 (taking into account all legal and other costs and expenses incurred in connection with this Agreement) and in the event this Agreement is terminated by Buyer pursuant to Section 9.1(c) or by the Company pursuant to Section 9.1(g), provided thatthen in any such case the Company shall pay simultaneously with such termination if pursuant to Section 9.1(g) and promptly, but in no event later than two business days after the date of such termination or event if pursuant to Section 9.1(c) a termination fee of $4,000,000 (taking into account all legal and other costs and expenses incurred in connection with this Agreement) (collectively, the "Termination Fee"). (c) If Buyer shall have terminated this Agreement pursuant to Section 9.1(b) or Section 9.1(d) or Section 9.1(f) and within one year of any such termination (i) the Company shall have entered into a definitive agreement with respect to this clause a Competing Transaction or a Competing Transaction with respect to the Company shall have been consummated or (B), only if Buyer is in material breach ii) Legacy shall have entered into a definitive agreement with respect to a Legacy Competing Transaction or default of its representations, warranties, covenants or obligations under this Agreementa Legacy Competing Transaction with respect to Legacy shall have been consummated, then Sellers in any such case the Company shall have pay promptly, but in no event later than two business days after the right date of such event to receiveBuyer an additional termination fee of $3,000,000, and which amount shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity payable by wire transfer to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused an account specified by Buyer’s breach of or default under this Agreement, . (d) The parties acknowledge that the difficulty of proof of loss, agreements contained in the inconvenience and infeasibility of otherwise obtaining preceding paragraph are an adequate remedy, and the value integral part of the transactions contemplated by this Agreement and that without these agreements, Buyer would not enter into this Agreement; accordingly, if the Company fails promptly to be consummated hereunder. The parties agree that pay the liquidated damages provided amounts due in this Section are intended accordance with the terms of such paragraph, and in order to limit obtain any such payment, Buyer commences a suit which results in a judgment against the claims that Company for any such payment, the Piedmont Companies may have against Buyer;Company shall pay to Buyer its cost and expenses (including reasonable attorneys' fees and expenses) in connection with such suit.

Appears in 1 contract

Samples: Securities Purchase Agreement (Price Enterprises Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated by either or both of Buyer or Sellers this Agreement pursuant to Section 12.17.1, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 7.1: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated by this Agreement, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party Parties shall be treated in accordance with Section 2.4 of the Confidentiality Agreement (other than which shall apply mutatis mutandis to this Section 7.2(a) as if fully set forth herein, including as to the extent exceptions to the Parties’ obligations relating to the return and destruction of joint documents, work papers and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Brokerother materials), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) notwithstanding any provision in this Agreement to the contrary, there shall be no Liability hereunder on the part of any of Sellers, Buyer or any of their respective directors, officers, employees, Affiliates, agents or representatives, except that (i) If this Agreement if the basis of termination is terminated: (A) a willful breach by Sellers pursuant to Section 12.1(c); any Seller or (B) by Sellers pursuant to Section 12.1(d)Buyer, provided thatas the case may be, with respect to this clause (B), only if Buyer is in material breach of one or default more of its representations, warranties, covenants or obligations under the provisions of this Agreement, then Sellers the breaching Party shall have be liable to the right to receivenon-breaching Party, and shall be paid, (ii) the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for in this Section are intended 7.2 (Procedure and Effect of Termination), Section 5,4 (Public Announcements), the last sentence of Section 5.23(d) (Financing), Section 9.1 (Fees and Expenses), Section 9.2 (Notices), Section 9.3 (Severability), Section 9.3 (Severability), Section 9.8 (Consent to limit Jurisdiction), Section 9.9 (Waiver of Jury Trial) and Section 9.10 (Governing Law) hereof and in the claims that Confidentiality Agreement shall survive any such termination; and (d) notwithstanding anything set forth in this Agreement or the Piedmont Companies may have against Buyer;Confidentiality Agreement to the contrary, the Confidentiality Agreement will survive the termination of this Agreement for so long as such Confidential Business Information is retained and not destroyed.

Appears in 1 contract

Samples: Purchase Agreement (RXO, Inc.)

Procedure and Effect of Termination. (a) If The obligations of the Company and its Subsidiaries, and the rights of Purchaser under this Agreement is terminated by either shall in no event terminate (but shall be effective immediately as to Purchaser's obligations hereunder, unless Purchaser otherwise elects) unless and until any and all amounts payable to Purchaser or both of Buyer or Sellers its Affiliates pursuant to Section 12.16.1 or Section 6.2 hereof (without duplication, prompt such that in no event shall the aggregate amounts owed Purchaser, if any, pursuant to this Article VI exceed $6.0 million), in connection with such proposed termination shall have been indefeasibly paid in full in cash to Purchaser. In the event of termination and abandonment of the transactions contemplated hereby pursuant to Section 6.3, written notice thereof shall forthwith be given to the other party Party to this Agreement and this Agreement shall terminate (subject to the provisions of this Section 6.4) and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties Parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (ia) Except as set forth in Section 12.2(bupon request therefor, each Party shall redeliver all documents, work papers and other material of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same; and (b) below, none of the parties no Party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to any other Party to this Agreement resulting from such termination except (i) that the other provisions of Section 4.13, Section 6.1, Section 6.2, this Section 6.4, Section 7.3, Section 7.14, and Exhibit A-2 to this Agreement shall survive such termination and remain in full force and effect and (ii) no Party waives any claim or right against a breaching party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which that such termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn results from the Governmental Authority or other Person to which made. (b) (i) If this Agreement is terminated: (A) breach by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default a Party hereto of any of its representations, warranties, covenants or obligations under agreements set forth in this Agreement; provided, then Sellers shall have however, that in the event Purchaser is entitled to receive the Termination Amount or the Bankruptcy Termination Amount, the right of Purchaser to receive, and receive such amount shall be paid, the Escrow Amount as liquidated damages, and constitute Purchaser's sole remedy for damages(and such amount shall constitute liquidated damages shall be in respect of) any breach by the Piedmont Companies’ sole and exclusive remedy and shall be in lieu Company or any of its Subsidiaries of any other remedies at law of their respective representations, warranties, covenants or agreements set forth in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;45

Appears in 1 contract

Samples: Investment Agreement (Philip Services Corp/De)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.18.1, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 8.1: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties shall be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 6.2(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) there shall be no liability or obligation hereunder on the part of any Seller, Buyer or any of their respective directors, officers, employees, Affiliates, agents or representatives except that (i) If this Agreement if the basis of termination is terminated: (A) a willful and material breach by Sellers pursuant to Section 12.1(c); of one or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light more of the anticipated harm which would be caused by Buyer’s breach provisions of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedybreaching Party shall be liable to Buyer for damages resulting from such breach, and (ii) the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for in this Section are intended 8.2 and Sections 6.5 (Public Announcements), 8.3 (Reverse Termination Fee), 9.1 (Fees and Expenses), 9.2 (Notices), 9.3 (Severability), 9.7 (Consent to limit Jurisdiction), 9.8 (Waiver of Jury Trial) and 9.10 (Governing Law) hereof and in the claims that Confidentiality Agreement shall survive any such termination; and (d) notwithstanding anything contained in this Agreement or the Piedmont Companies may have against Buyer;Confidentiality Agreement to the contrary, the Confidentiality Agreement will survive the termination of this Agreement for a period of two (2) years following the date of such termination and the term of the Confidentiality Agreement will be automatically amended to be extended for such additional two (2) year period.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Hd Supply, Inc.)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated by either or both of Buyer or Sellers this Agreement pursuant to Section 12.17.1, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 7.1: (ia) Except as set forth in Section 12.2(b) beloweach Party shall destroy all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated by this Agreement, whether obtained before or after the execution hereof, and deliver notice to the Party seeking destruction of such documents that such destruction has been completed (provided that a Party shall be entitled to retain one copy of such documents, work papers and other materials in its legal department in accordance with the requirements of its document retention policies, and no Party shall be required to destroy or delete information contained in “back-up” or archived electronic form in the Ordinary Course, and all confidential information received or so retained by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties shall be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 5.1(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of Seller, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bc) notwithstanding any provision in this Agreement to the contrary, there shall be no Liability hereunder on the part of any of Seller, Buyer or any of their respective directors, officers, employees, Affiliates, agents or representatives, except that (i) If this Agreement if the basis of termination is terminated: (A) a willful breach by Sellers pursuant to Section 12.1(c); Seller or (B) by Sellers pursuant to Section 12.1(d)Buyer, provided thatas the case may be, with respect to this clause (B), only if Buyer is in material breach of one or default more of its representations, warranties, covenants or obligations under the provisions of this Agreement, then Sellers the breaching Party shall have be liable to the right non-breaching Party and the non-breaching Party will be entitled to receivespecific performance, including to complete the contemplated transactions, and shall be paid, (ii) the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for in this Section are intended 7.2 and Section 5.1(b) (Access to limit Information) Section 5.3 (Public Announcements), Section 9.1 (Fees and Expenses), Section 9.2 (Notices), Section 9.3 (Severability), Section 9.8 (Consent to Jurisdiction), Section 9.9 (Waiver of Jury Trial) and Section 9.10 (Governing Law) hereof and in the claims that the Piedmont Companies may have against Buyer;Confidentiality Agreement shall survive any such termination.

Appears in 1 contract

Samples: Purchase Agreement (TFI International Inc.)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated by either or both of Buyer or Sellers this Agreement pursuant to Section 12.18.1, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 8.1: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated by this Agreement, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties shall be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 6.2(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of either Party, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) notwithstanding any provision in this Agreement to the contrary, there shall be no Liability hereunder on the part of any of Parent, Buyer or any of their respective directors, officers, employees, Affiliates, agents or representatives, except that (i) If this Agreement if the basis of termination is terminated: (A) a breach by Sellers pursuant to Section 12.1(c); Parent or (B) by Sellers pursuant to Section 12.1(d)Buyer, provided thatas the case may be, with respect to this clause (B), only if Buyer is in material breach of one or default more of its representations, warranties, covenants or obligations under the provisions of this Agreement, then Sellers the breaching Party shall have be liable to the right to receivenon-breaching Party, and shall be paid, (ii) the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for in this Section are intended 8.2 and Section 6.2(b) (Access to limit Information) Section 6.4 (Public Announcements), Section 9.1 (Fees and Expenses), Section 9.2 (Notices), Section 9.3 (Severability), Section 9.8 (Consent to Arbitration), Section 9.9 (Waiver of Jury Trial) and Section 9.10 (Governing Law) hereof and in the claims that Confidentiality Agreement shall survive any such termination; and (d) notwithstanding anything set forth in this Agreement or the Piedmont Companies may have against Buyer;Confidentiality Agreement to the contrary, the Confidentiality Agreement will survive the termination of this Agreement for a period of two years following the date of such termination and the term of the Confidentiality Agreement will be automatically amended to be extended for such additional two year period.

Appears in 1 contract

Samples: Purchase Agreement (Mativ Holdings, Inc.)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers the Company, on the one hand, and the Acquiring Entities, on the other hand, pursuant to Section 12.17.1, prompt written notice thereof shall forthwith be given by the terminating party to the other party hereto, and this Agreement shall thereupon terminate and become void and have no effect, and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any except that the provisions of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: Section 5.2 (i) Except as set forth in Section 12.2(b) below, none of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Public Announcements; Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 Section 7.3 (Expenses), Article 14 Section 8.2 (MiscellaneousGoverning Law), and Section 8.4 (Notices) and shall survive the termination of this Article 12Agreement; and (ii) All filingsPROVIDED, applications and other submissions relating to the transactions contemplated hereby as to which HOWEVER, that such termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which madeshall not relieve any party hereto of any liability for any breach of this Agreement. (b) In the event that (i) If this Agreement is terminated: (A) terminated by Sellers Parent pursuant to Section 12.1(c7.1(c); , or (B) by Sellers the Company or Parent pursuant to Section 12.1(d7.1(e) or Section 7.1(f), provided and either (C) a Competing Proposal shall have been previously publicly proposed or publicly announced or any person has previously publicly announced an intention (whether or not conditional and whether or not withdrawn) to make a Competing Proposal, or (D) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement with respect to, or consummates, any Competing Proposal, or (ii) this Agreement is terminated by the Company pursuant to Section 7.1(h) or the Parent pursuant to Section 7.1(g), then the Company shall pay Parent a fee equal to $2,475,000 (the "TERMINATION FEE") by wire transfer of same day funds to an account designated by Parent, in the case of a payment as a result of any event referred to in Section 7.2(b)(i)(A) or (B) and (D), upon the first to occur of the entering into any definitive agreement or the consummation of any Competing Proposal and in the case of a payment as a result of any event referred to in Section 7.2(b)(ii) or Section 7.2(b)(i)(A) or (B) and (C), promptly, but in no event later than the date of such termination. (c) The Company shall reimburse Parent and Merger Sub for all their expenses incurred in connection with this Agreement and the Merger in the event this Agreement is terminated in the circumstances described in Section 7.2(b), promptly, but in no event later than the date of such termination; PROVIDED, HOWEVER, that the aggregate amount of such reimbursement shall not exceed $412,500 in the aggregate. All payments made pursuant to this Section 7.2(c) shall be made by wire transfer of the same day funds to an account designated by Parent. (d) Notwithstanding any other provisions in this Agreement, any payments otherwise to be made by the Company to Parent under Sections 7.2(b) and (c) hereof for any calendar year shall not exceed the sum of (a) the amount that it is determined should not be gross income of Parent for purposes of the requirements of Sections 856(c)(2) and (3) of the Code, with such determination to be set forth in an opinion of outside tax counsel selected by Parent, which opinion shall be reasonably satisfactory to Parent (which opinion is referred to as a "NO GROSS INCOME OPINION") plus (b) such additional amount that it is estimated can be paid to Parent in such taxable year without creating a risk that the payment would cause Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, determined as if the payment of such amount did not constitute income that qualifies as gross income for purposes of Section 856(c)(2) of the Code, which determination shall be made by independent tax accountants to Parent and (c) in the event Parent receives a letter from tax counsel (the "ALTERNATIVE TAX LETTER") indicating that Parent has received a ruling from the Internal Revenue Service holding that Parent's receipt of the additional amount otherwise to be paid under this Agreement either would constitute income that qualifies as gross income for purposes of Section 856(c)(2) of the Code ("QUALIFYING INCOME") or would be excluded from gross income of Parent for purposes of Sections 856(c)(2) and (3) of the Code (the "REIT REQUIREMENTS"), the aggregate payments otherwise required to be made under this Agreement (determined without regard to this Section 7.2(d)) less the amount otherwise previously paid under clauses (a) and (b) above. The obligation of the Company to pay any unpaid portion of any payment otherwise required under this Agreement that remains unpaid solely by reason of this Section 7.2(d) shall terminate three years from the date such payment otherwise would have been made but for this Section 7.2(d). In the event that Parent is not able to receive the full payments that otherwise would be due under this Agreement as and when such payments otherwise would be required to be made, the Company shall place the unpaid amount in escrow and shall not release any portion thereof to the Parent unless and until the Company receives any of the following: (x) a letter from Parent's independent tax accountants indicating the amount that it is estimated can be paid at that time to Parent without creating a risk that the payment would cause Parent to fail to meet the REIT Requirements for the taxable year in which the payment would be made, which determination shall be made by such independent tax accountants, (y) an Alternative Tax Letter or (z) an opinion of outside tax counsel selected by Parent, which opinion shall be reasonably satisfactory to Parent, to the effect that, based upon a change in law after the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid under this Agreement either would be excluded from gross income of Parent for purposes of the REIT Requirements or would constitute Qualifying Income, in any of which events the Company shall pay Parent the lesser of the unpaid amounts due under this Agreement (determined without regard to this Section 7.2(d)) or the maximum amount stated in the letter referred to in clause (x) above. At the end of the three-year period referred to above in this Section 7.2(d) with respect to this clause any amount placed in such escrow, if none of the events referred to in clauses (Bx), only if Buyer is in material breach (y) or default (z) of its representations, warranties, covenants or obligations under this Agreement, then Sellers the preceding sentence shall have the right to receiveoccurred, and such amount shall be paid, released from such escrow to be used as determined by the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ Company in its sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;absolute discretion.

Appears in 1 contract

Samples: Merger Agreement (Kimco Realty Corp)

Procedure and Effect of Termination. (a) If In the event of a termination contemplated hereby by any party pursuant to SECTION 9.1, the party seeking to terminate this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.1, shall give prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate party, and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties party hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided hereinIn such event: (i) Except as The parties hereto shall continue to be bound by (i) their obligations of confidentiality set forth herein and all copies of the information provided by the Company hereunder will be returned to the Company or destroyed immediately upon its request therefor, (ii) the provisions set forth in Section 12.2(bSECTION 7.4 relating to publicity and (iii) below, none of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly provisions set forth in this Agreement) or any of their respective Related Parties pursuant SECTION 10.1 relating to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andexpenses; (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which made; and (iii) The terminating party shall be entitled to seek any remedy to which such party may be entitled at law or in equity for the violation or breach of any agreement, covenant, representation or warranty contained in this Agreement. (b) (i) If this Agreement is terminated: (A) by Sellers terminated pursuant to Section 12.1(cSECTION 9.1(D)(I); or , the Company shall promptly pay to the Buyer by wire transfer of immediately available funds an amount equal to $90,000. If (Bi) by Sellers this Agreement is terminated pursuant to Section 12.1(dSECTION 9.1(C), provided that9.1(D)(I), 9.1(E) or 9.1(F) and (ii) an Acquisition Proposal is made with respect to this clause (B), only if Buyer is in material breach the Company or default any of its representations, warranties, covenants or obligations under Subsidiaries within 12 months following the termination of this Agreement, then Sellers shall have the right to receive, Agreement and shall be paidsuch proposed transaction is subsequently consummated, the Escrow Amount as liquidated damagesCompany (and its successors) shall promptly pay to the Buyer by wire transfer of immediately available funds an amount equal to$450,000, and less $90,000 if such liquidated damages shall be amount was previously paid to the Piedmont Companies’ sole and exclusive remedy and shall be in lieu Buyer pursuant to the first sentence of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;SECTION 9.2(B).

Appears in 1 contract

Samples: Merger Agreement (First Bancorp /Nc/)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated hereby and by either or both of Buyer or Sellers the Transition Agreement pursuant to Section 12.110.1 hereof, prompt written notice thereof shall forthwith be given by the party so terminating to the other party to this Agreement, and this Agreement shall terminate and the transactions contemplated hereby and thereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default Seller or breach of its representations, warranties, covenants or obligations under this AgreementBuyer. If this Agreement is terminated as provided hereinpursuant to Section 10.1 hereof: (ia) Except as set forth in Section 12.2(bBuyer shall return all documents, work papers and other materials (and all copies thereof) below, none of obtained from Seller or the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) Company or any of the Division Entities or their respective Related Parties pursuant to this Agreement with respect to which termination has occurredemployees, except for the obligations of Sellers and Buyer (but not including Sellers’ agents or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions representatives relating to the transactions contemplated hereby as and by the Ancillary Agreements, whether so obtained before or after the execution hereof, to which termination has occurred the party furnishing the same, and all confidential information received by Buyer with respect to the Division shall be treated in accordance with Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section; (b) At the option of Seller, all Filings, applications and other submissions made pursuant to Sections 5.3, 5.4 and 5.5 hereof shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (b) (ic) If this Agreement is terminated: terminated and the transactions contemplated hereby are abandoned as described in this Section 10.2, this Agreement shall become null and void and of no further force or effect, except for the obligations provided for in Sections 5.6, 10.2, 12.3, 12.10 and 12.11 hereof, the confidentiality provision contained in Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section shall survive any such termination of this Agreement without limitation; and (Ad) by Sellers pursuant Such termination shall not be deemed to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material release and shall not relieve either party hereto from any liability for any willful breach or default violation by such party of any of its representations, warranties, covenants or obligations under agreements contained in this AgreementAgreement arising prior to such termination, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount except as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;10.2(e).

Appears in 1 contract

Samples: Stock Purchase Agreement (Healthsouth Corp)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated by either or both of Buyer or Sellers this Agreement pursuant to Section 12.18.1, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided herein:pursuant to Section 8.1, (a) each Party shall (i) Except as set forth in Section 12.2(b) belowupon prior written notice to such Party, none destroy all documents, work papers and other materials of the parties hereto nor any other Party and deliver notice to the Party seeking destruction of their respective partnerssuch documents that such destruction has been completed, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates and (each, a “Related Party”ii) shall have any liability or further obligation treat all confidential information received by such Party with respect to the other party (other than to Party confidentially, in each case, in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 6.3(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made., unless otherwise mutually agreed by Xxxxxx and Buyer; (bc) notwithstanding any provision in this Agreement to the contrary, there shall be no Liability hereunder on the part of any of Parent, Buyer or any of their respective directors, officers, employees, Affiliates, agents or representatives, except (i) If this Agreement is terminated: (A) by Sellers pursuant to as provided in Section 12.1(c); 8.3, or (Bii) if the basis of termination is a Willful Breach by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is Parent of one or more of the covenants set forth in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers Parent shall have the right be fully liable to receiveBuyer for any and all Losses incurred or suffered by Buyer as a result of such Willful Breach, and shall be paid, (iii) the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for (A) in this Section are intended 8.1(c) and Section 6.3(b) (Access to limit the claims that the Piedmont Companies may have against Buyer;Information), Section 6.6 (Public Announcements), Section 10.1 (Fees and Expenses), Section 10.2 (Notices), Section 10.3 (Severability),

Appears in 1 contract

Samples: Purchase Agreement (NCR Voyix Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers a party pursuant to Section 12.1, prompt 10.1 written notice thereof shall forthwith be given to the other party parties specifying the provision of Section 10.1 pursuant to which such termination is made, and this Agreement (other than this Section 10.2, Section 7.7 (Confidentiality) and Section 11 (Miscellaneous), other than Section 11.5 (Further Assurances)) shall terminate and the transactions contemplated hereby shall be abandoned become void and of no force or effect without further action by liability of any party (or any stockholder, director, officer, employee, agent, consultant or representative of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (isuch party) Except as set forth in Section 12.2(b) below, none of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party hereto; provided, however, that if such termination shall result from (other than i) the willful failure of any party hereto to fulfill a condition to the extent performance of joint the material obligations of the other parties hereto or (ii) the willful failure of any party hereto to perform a material covenant applicable to it, such party shall be fully liable for any and several liability among all liabilities and damages incurred or suffered by the Piedmont Companies other party as expressly set forth in a result of such failure; provided, further, that: 10.2.1. if Buyer terminates this Agreement) or any of their respective Related Parties Agreement pursuant to this Agreement with respect Section 10.1.5 or Section 10.1.7, within five (5) Business Days after the date of such termination, Seller shall pay the amount of One Million Dollars (US$1,000,000) (the “Termination Fee”) to, or as directed by, Buyer by wire transfer of immediately available funds to which termination has occurred, except for the obligations of Sellers and one or more accounts specified by Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12writing; and 10.2.2. if Seller terminates this Agreement pursuant to Section 10.1.4, within five (ii5) All filingsBusiness Days after the date of such termination, applications and other submissions relating Buyer shall pay the Termination Fee to, or as directed by, Seller by wire transfer of immediately available funds to one or more accounts specified by Buyer in writing. 10.2.3. Each party acknowledges that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which made. (b) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement. In the event that either party shall fail to pay the Termination Fee when due, then Sellers such party shall have reimburse the right to receive, other party for all reasonable and shall be paid, documented costs and expenses actually incurred or accrued by or on behalf of such party (including reasonable fees and expenses of counsel) in connection with the Escrow Amount as liquidated damages, collection under and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu enforcement of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;10.2.3.

Appears in 1 contract

Samples: Asset Purchase Agreement (WPT Enterprises Inc)

Procedure and Effect of Termination. (a) If this Agreement is terminated In the event of termination and abandonment of the transactions contemplated hereby by either August or both of Buyer or Sellers by ASTIHL pursuant to Section 12.110.1 hereof, prompt written notice thereof shall forthwith immediately be given to the other party and this Agreement shall terminate and the such transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties hereto. ASTIHL and Affiliates agree that any termination by ASTIHL shall be conclusively binding upon such parties, but subject whether given expressly on such party's behalf or not, and August shall have no further obligation with respect to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementsuch party. If this Agreement is terminated as provided herein, Article 9, Article 10, Article 12, Section 13.6 and Section 13.7 shall survive any such termination and continue in effect thereafter. Notwithstanding anything herein to the contrary, the following shall apply: (ia) Except as In recognition of the time, efforts, and expenses expended and incurred by August with respect to the Business and the opportunity that the acquisition of the Shares presents to August, if this Agreement is terminated by ASTIHL pursuant to Section 10.1(c) under Section 6.1(a), or pursuant to Section 10.1(b), or by August pursuant to Section 10.1(d) (except pursuant to Sections 6.1(b), 6.1(c), 6.1(d), 6.1(e) and 6.2(e)), STI and/or ASTIHL, who shall be jointly and severally obligated, shall pay to August an amount equal to Two Million Six Hundred Thousand Dollars ($2,600,000) in cash or cash equivalent within ten days of the termination date by wire transfer of immediately available funds to an account designated by August. Notwithstanding the foregoing, ASTIHL and STI shall not be obligated to make the payment required by the preceding sentence in the event August has terminated this Agreement because one or more conditions set forth in Section 12.2(b) below6.1 or 6.2 have not been satisfied despite the best efforts of ASTIHL due to force majeure, none of the parties hereto nor any of their respective partnerswhich shall include, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ be limited to, fires, floods, riots, terrorist acts, strikes, labor disputes, freight embargoes or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker)transportation delays, 5.6 (Buyer’s Broker)shortage of labor, 7.3 (Confidentiality)inability to secure fuel, 7.7 (Non-Solicitation)materials, supplies, equipment or power on account of shortages thereof and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority acts of God or other Person to which madepublic enemy. (b) (i) If In further recognition of the time, efforts, and expenses expended and incurred by August with respect to the Business and the opportunity that the acquisition of the Shares presents to August, if this Agreement is terminated: terminated by either ASTIHL or August following a breach of Section 5.4 and within four months following the termination date, ASTIHL sells or merges the Business in any part, in its entirety or as a part of other assets, or enters into an agreement to do any of the foregoing, to any third party (Aan "Alternative Transaction"), then within ten days after written demand by August after the date of entering into an agreement providing for an Alternative Transaction, ASTIHL shall pay to August an amount equal to Two Million Six Hundred Thousand Dollars ($2,600,000) in cash or cash equivalent by Sellers wire transfer of immediately available funds to an account designated by August. (c) In recognition of the time, efforts, and expenses expended and incurred by ASTIHL with respect to the transactions contemplated by this Agreement and the opportunity that the sale of the Shares presents to ASTIHL, if this Agreement is terminated by August pursuant to Section 12.1(c); 10.1(b) or (B) by Sellers ASTIHL pursuant to Section 12.1(d10.1(c) (except pursuant to Sections 6.1(a), provided that6.1(b), 6.1(d) and 6.1(e)), August shall pay to ASTIHL an amount equal to Two Million Six Hundred Thousand Dollars ($2,600,000) in cash or cash equivalent within ten days of the termination date by wire transfer of immediately available funds to an account designated by ASTIHL. Notwithstanding the foregoing, August shall not be obligated to make the payment required by the preceding sentence in the event ASTIHL has terminated this Agreement because one or more conditions set forth in Section 6.3 have not been satisfied despite the best efforts of August due to force majeure, which shall include, but not be limited to, fires, floods, riots, terrorist acts, strikes, labor disputes, freight embargoes or transportation delays, shortage of labor, inability to secure fuel, materials, supplies, equipment or power on account of shortages thereof and acts of God or public enemy. (d) In further recognition of the time, efforts, and expenses expended and incurred by August with respect to the Business and the opportunity that the acquisition of the Shares presents to August, if this clause (BAgreement is terminated by ASTIHL or August pursuant to Sections 10.1(e), only if Buyer is in material breach or default ASTIHL shall pay to August all of its representations, warranties, covenants or obligations under August's reasonable costs and expenses incurred incident to this Agreement, then Sellers shall have Agreement and the right to receivepreparation for, and shall be paidconsummation of, the Escrow Amount as liquidated damagestransactions provided for herein, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law cash or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light cash equivalents within ten days of the anticipated harm which would be caused termination date by Buyer’s breach wire transfer of or default under immediately available funds to an account designated by August. (e) The parties acknowledge that the agreements contained in this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining Section 10.2 are an adequate remedy, and the value integral part of the transactions contemplated by this Agreement and are not a penalty, and that, without these agreements, the parties would not enter into this Agreement. If a party fails to be consummated hereunder. pay promptly the fee due pursuant to this Section 10.2, the party shall also pay to the other party such costs and expenses (including legal fees and expenses) in connection with any action, taken to collect payment, together with interest on the amount of the unpaid fee under this section, accruing from its due date, at an interest rate of 5% per annum. (f) The parties agree that the liquidated damages payments provided for in this Section are intended shall be the sole and exclusive remedies of the parties upon termination of this Agreement pursuant to limit the claims that the Piedmont Companies may have against Buyer;Section 10.1.

Appears in 1 contract

Samples: Purchase Agreement (August Technology Corp)

Procedure and Effect of Termination. (a) If In the event of ----------------------------------- termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given to the other party and party, and, except as set forth below, this Agreement shall terminate and be void and have no effect and the transactions contemplated hereby shall be abandoned without further action by any abandoned; provided that if such -------- termination shall result from the failure of the parties heretoa party to perform a covenant, but subject to and without limiting any of the rights of the parties set forth obligation or agreement in this Agreement if or from the breach by Buyer or DuPont of any representation or warranty contained herein, such party shall be fully liable for any and all damages incurred or suffered by 111 the other party as a party is in default result of such failure or breach of its representations, warranties, covenants or obligations under this Agreementbreach. If this Agreement is terminated as provided herein: (ia) Except as set forth in Section 12.2(b) below, none of the parties each party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation)will redeliver, and 13.2 will cause its agents (Governmental Filing Fees)including, 13.3 (Expenses)without limitation, Article 14 (Miscellaneousattorneys and accountants) and this Article 12; and (ii) All filingsto redeliver, applications all documents, work papers and other submissions material of each party hereto relating to the transactions contemplated hereby as to which termination has occurred shallhereby, to whether obtained before or after the extent practicable, be withdrawn from the Governmental Authority or other Person to which made.execution hereof; (b) all Information received by Buyer with respect to the business, operations, Assets or financial condition of DuPont or its Subsidiaries shall remain subject to the Confidentiality Agreement; (c) DuPont agrees that all confidential information received by DuPont or its Affiliates or their Representatives with respect to Buyer or this Agreement or the transactions contemplated hereby shall be kept confidential (subject to the proviso in Section 5.15(a)) notwithstanding the termination of this Agreement; and (d) notwithstanding the termination hereof, the following Sections of this Agreement shall remain in full force and effect: (i) If this Agreement is terminated: Sections 3.16 and 4.4 relating to brokers, (Aii) by Sellers pursuant the penultimate sentence of Section 5.2 relating to confidentiality matters, (iii) Section 12.1(c); or 9.13 relating to certain expenses and (Biv) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, Sections 8.1 and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;8.2.

Appears in 1 contract

Samples: Purchase Agreement (Dupont E I De Nemours & Co)

Procedure and Effect of Termination. In the event of a termination of this Agreement by any party pursuant to Section 14.1: (a) If this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.1, The terminating party shall give prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate parties, and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties hereto, but subject to and without limiting any of the rights ; (b) All further obligations of the parties set forth hereunder shall terminate, except that the obligations in this Agreement if a party is in default or breach of its representationsSections 6.5 (Confidentiality; No Hire), warranties15.3 (Public Announcements), covenants or obligations under this Agreement. If this Agreement is terminated as provided herein:15.8 (Governing Law) and 15.12 (Expenses) hereof shall survive; (i) Except as set forth in Section 12.2(b) below, none of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (iic) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred herein shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made; and (d) In the event of the termination of this Agreement as provided in Section 14.1, written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination is made, and this Agreement (except as set forth in Section 14.2(b)) shall forthwith become null and void, and there shall be no liability on the part of the Seller, the Buyer and the Parent; provided, however, that nothing in this Section 14.2 shall relieve any party from liability for any breach (occurring prior to any such termination) of any of the covenants, representations or agreements set forth in this Agreement. (be) To the extent that the Seller notifies the Buyer in writing no less than five (i5) If Business Days prior to the Closing Date of the existence of a Material Adverse Effect (describing the Material Adverse Effect in reasonable detail) and the Seller qualifies its representations and warranties therein by stating that such Material Adverse Effect has occurred (which would cause one of the Buyer’s conditions to close the transactions contemplated hereby not to be fulfilled and would give the Buyer the right to terminate this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c14.1(c); or (B) by Sellers pursuant to Section 12.1(d)and the Buyer nonetheless closes the transactions contemplated hereby, provided thatthen, the Buyer may not seek indemnification hereunder with respect to this clause such Material Adverse Effect; provided, however, that if the Seller is unable to, or otherwise does not, give at least five (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount 5) Business Days notice as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended the Closing Date, at the election of the Buyer, shall be postponed so as to limit permit no less than five (5) Business Days between the claims that date of such notice and the Piedmont Companies Closing Date. (f) None of the parties hereto may have against Buyer;rely on the failure of any condition to its obligation to consummate the transaction contemplated hereby set forth in Section 12.1, 12.2 or 12.3, as the case may be, to be satisfied if such failure was caused by such party’s failure to use its efforts required of such party herein to consummate the transactions hereby.

Appears in 1 contract

Samples: Purchase Agreement (Enpro Industries, Inc)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given to the other party and party, and, except as set forth below, this Agreement shall terminate and be void and have no effect and the transactions contemplated hereby shall be abandoned without further action by any abandoned; PROVIDED that if such termination shall result from the failure of the parties heretoa party to perform a covenant, but subject to and without limiting any of the rights of the parties set forth obligation or agreement in this Agreement if or from the breach by Buyer or DuPont of any representation or warranty contained herein, such party shall be fully liable for any and all damages incurred or suffered by 111 the other party as a party is in default result of such failure or breach of its representations, warranties, covenants or obligations under this Agreementbreach. If this Agreement is terminated as provided herein: (ia) Except as set forth in Section 12.2(b) below, none of the parties each party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation)will redeliver, and 13.2 will cause its agents (Governmental Filing Fees)including, 13.3 (Expenses)without limitation, Article 14 (Miscellaneousattorneys and accountants) and this Article 12; and (ii) All filingsto redeliver, applications all documents, work papers and other submissions material of each party hereto relating to the transactions contemplated hereby as to which termination has occurred shallhereby, to whether obtained before or after the extent practicable, be withdrawn from the Governmental Authority or other Person to which made.execution hereof; (b) all Information received by Buyer with respect to the business, operations, Assets or financial condition of DuPont or its Subsidiaries shall remain subject to the Confidentiality Agreement; (c) DuPont agrees that all confidential information received by DuPont or its Affiliates or their Representatives with respect to Buyer or this Agreement or the transactions contemplated hereby shall be kept confidential (subject to the proviso in Section 5.15(a)) notwithstanding the termination of this Agreement; and (d) notwithstanding the termination hereof, the following Sections of this Agreement shall remain in full force and effect: (i) If this Agreement is terminated: Sections 3.16 and 4.4 relating to brokers, (Aii) by Sellers pursuant the penultimate sentence of Section 5.2 relating to confidentiality matters, (iii) Section 12.1(c); or 9.13 relating to certain expenses and (Biv) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, Sections 8.1 and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;8.2.

Appears in 1 contract

Samples: Purchase Agreement (Bristol Myers Squibb Co)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated hereby and by either or both of Buyer or Sellers the other Transaction Documents pursuant to Section 12.110.1 hereof, prompt written notice thereof shall forthwith be given by the party so terminating to the other party to this Agreement, and this Agreement shall terminate and the transactions contemplated hereby and thereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default Seller or breach of its representations, warranties, covenants or obligations under this AgreementBuyer. If this Agreement is terminated as provided hereinpursuant to Section 10.1 hereof: (ia) Except as set forth in Section 12.2(bBuyer shall return or destroy all documents, work papers and other materials (and all copies thereof) below, none of obtained from Seller or the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) Company or any of the Division Entities or their respective Related Parties pursuant to this Agreement with respect to which termination has occurredemployees, except for the obligations of Sellers and Buyer (but not including Sellers’ agents or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions representatives relating to the transactions contemplated hereby as and by the other Transaction Documents, whether so obtained before or after the execution hereof, to which termination has occurred the party furnishing the same, and all confidential information received by Buyer with respect to the Division shall be treated in accordance with Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section; (b) At the option of Seller, all Filings, applications and other submissions made pursuant to Sections 5.3 and 5.4 hereof shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (b) (ic) If this Agreement is terminated: terminated and the transactions contemplated hereby are abandoned as described in this Section 10.2, this Agreement shall become null and void and of no further force or effect, except for the obligations provided for in Sections 5.6, 10.2, 12.3, 12.10 and 12.11 hereof, the confidentiality provision contained in Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section shall survive any such termination of this Agreement without limitation; and (Ad) by Sellers pursuant Such termination shall not be deemed to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material release and shall not relieve either party hereto from any liability for any breach or default violation by such party of any of its representations, warranties, covenants or agreements contained in this Agreement, nor shall such termination impair the rights of either party to (i) compel specific performance by the other party of its obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of Agreement or (ii) seek any other remedies at remedy under law or in equity equity. (e) In the event that this Agreement is terminated by Seller pursuant to which the Piedmont Companies might otherwise Section 10.1(c)(i), then Gores Capital Partners, L.P. (“Parent”) shall pay or cause to be entitledpaid to Seller an amount equal to Two Million Three Hundred Seventy-Five Thousand Dollars ($2,375,000) within ten (10) Business Days following such termination, payable by wire transfer of same day funds. Upon such payment, Parent and Buyer shall have no further obligation to Seller or any of its Affiliates under this Agreement or any Transaction Document. Buyer and the Piedmont Companies each acknowledges Parent acknowledge and agrees agree that such liquidated damages amount this Section 10.2(e) is reasonable in light an integral part of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement. Accordingly, if Parent fails within ten (10) Business Days to pay the difficulty of proof of lossamounts due pursuant to this Section 10.2(e), and, in order to obtain such payment, Seller commences a suit that results in a judgment against Parent for the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided amounts set forth in this Section are intended 10.2(e), Parent shall pay to limit Seller interest on the claims that amounts set forth in this Section 10.2(e) from and including the Piedmont Companies may have against Buyer;date payment of such amount was due to Seller at the prime rate of Regions Bank in effect on the date such payment was required to be made, together with reasonable legal fees and expenses incurred in connection with such suit.

Appears in 1 contract

Samples: Stock Purchase Agreement (Healthsouth Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers and/or Seller pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth specified herein in this Agreement if the event a party is in default or breach in any material respect of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (i1) Except as set forth in Section 12.2(b) below, none None of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (eachincluding any shareholder, a “Related Party”partner, director, officer, employee, agent or Affiliate of the general partner of the Seller or of the general partner of the Seller's general partner) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties partners, directors, officers, shareholders, employees, agents, or Affiliates pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers Seller and Buyer (but not including Sellers’ Seller's or Buyer’s Related Parties's partners, directors, officers, shareholders, employers, agents, or Affiliates (or any shareholder, partner, director, officer, employee, agent or Affiliate of the general partner of the Seller or of the general partner of Seller's general partner)) as stated in Sections 4.18 (Sellers’ Broker)3.18, 5.6 (Buyer’s Broker)4.5, 7.3 (Confidentiality)6.4, 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous9.2(b) and this Article 1211.1 hereof; and (ii2) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person person to which made. (b1) If both (ix) this Agreement is terminated pursuant to Section 9.1 (other than as set forth in subsections(3) and (4) of this Section 9.2(b)) by any party for any reason and (y) (I) Seller shall be in breach in a material respect of any of its obligations, representations, warranties or covenants set forth in this Agreement or (ii) neither Buyer nor Seller shall be in breach in a material respect of any of their obligations, representations, warranties or covenants set forth in this Agreement, then and in that event, the Escrow Amount shall be returned to Buyer and if Seller shall be in breach in a material respect of any of its obligations, representations, warranties or covenants under this Agreement, Buyer shall have the right to pursue all legal or equitable remedies for breach of contract or otherwise; (2) If both (x) this Agreement is terminated pursuant to Section 9.1 (other than as set forth in subsections (3) and (4) of this Section 9.2(b)) by any party for any reason and (y) Buyer shall be in breach in a material respect of any of its obligations, representations, warranties or covenants set forth in this Agreement, then and in that event, Seller shall have the right to receive the Escrow Amount as liquidated damages for and as the exclusive remedy of Seller as a consequence of Buyer's default (which aggregate amount the parties agree is a reasonable estimate of the damages that will be suffered by Seller and does not constitute a penalty, the parties hereby acknowledging the inconvenience and nonfeasibility of otherwise obtaining an adequate remedy); (3) If this Agreement is terminated: (A) terminated by Sellers Seller pursuant to Section 12.1(c9.1(e); or , then in that event, Seller shall have the right to receive the Escrow Amount as liquidated damages for and as the exclusive remedy of Seller as a consequence thereof (Bwhich aggregate amount the parties agree will be suffered by Seller and does not constitute a penalty, the parties hereby acknowledging the inconvenience and nonfeasibility of otherwise obtaining an adequate remedy); (4) by Sellers If this Agreement is terminated pursuant to Section 12.1(d)9.1(f) by any party, provided thatthen in that event the Escrow Amount shall be returned to Buyer and Buyer shall have no recourse against Seller, with respect including no right to pursue any legal or equitable remedy for breach of contract or otherwise; and (5) Without limiting the generality of the foregoing, or any applicable law, neither Buyer, on the one hand, nor Seller, on the other hand, may rely on the failure of any condition precedent set forth in Section 7 to be satisfied as a ground for termination of this clause Agreement by such party if such failure was caused by such party's (B)or parties') failure to act in good faith, only if Buyer is in material or a breach of or default of failure to perform its representations, warranties, covenants or other obligations under this Agreement, then Sellers shall have in accordance with the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;terms hereof.

Appears in 1 contract

Samples: Asset Purchase Agreement (Meredith Corp)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 8.1 hereof: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties shall be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 6.2(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of the Company, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bc) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and there shall be paid, no liability or obligation hereunder on the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light part of the anticipated harm which would be caused by Buyer’s breach Company, any Seller, Buyer or any of their respective directors, officers, employees, Affiliates, agents or default under this Agreementrepresentatives, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree except that the liquidated damages obligations provided for in this Section are intended to limit 8.2 and Section 6.5 (Public Announcements), Section 8.3 (Termination Fee), Section 10.1 (Fees and Expenses), Section 10.2 (Notices), Section 10.3 (Severability), and Section 10.8 (Governing Law; Venue) hereof and in the claims that the Piedmont Companies may have against Buyer;Confidentiality Agreement shall survive any such termination.

Appears in 1 contract

Samples: Partnership Purchase Agreement (Media General Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given by the terminating Party to the other party Party, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any Party; provided, however, that in the event this Agreement is terminated (i) pursuant to Section 9.1(c), Section 9.1(e) or Section 9.1(g) then Seller, on the one hand, and Buyer, on the other hand, shall promptly (and in any event within one Business Day of such termination) deliver a joint instruction to the parties heretoEscrow Agent instructing the Escrow Agent to pay the Deposit by wire transfer in immediately available funds to such account or accounts as Seller designates in such joint written instruction; provided that, but subject in the event this Agreement is terminated pursuant to Section 9.1(f), then Buyer shall pay Seller a fee in an amount equal to the Deposit (the “Deposit Fee”), and without limiting (ii) pursuant to any other Section of this Agreement other than Section 9.1(c), Section 9.1(e), Section 9.1(f) or Section 9.1(g) then Seller, on the rights one hand, and Buyer, on the other hand, shall promptly (and in any event within one Business Day of such termination) deliver a joint instruction to the parties Escrow Agent instructing the Escrow Agent to pay the Deposit by wire transfer in immediately available funds to such account or accounts as Buyer designates in such joint written instruction. For the avoidance of doubt, in the event of any breach or violation of this Agreement by Buyer, Seller’s sole and exclusive remedy is to terminate this Agreement (to the extent such termination right exists in accordance with Section 9.1(c), Section 9.1(f) or Section 9.1(g)) and to receive the Deposit and, if terminated pursuant to Section 9.1(f), to receive the Deposit Fee in lieu thereof. For the avoidance of doubt, in the event of Buyer’s termination of this Agreement in accordance with Section 9.1, Buyer’s sole and exclusive remedy (to the extent such termination right exists) is to receive the Deposit. The Parties acknowledge and agree that the agreements set forth in this Agreement if a party is Section 9.2, including to pay the amounts described in default or breach the preceding two sentences, are an integral part of its representationsthe transaction contemplated hereby and that, warrantieswithout that agreement, covenants or obligations under the Parties would not have entered into this Agreement, and further that, the payment amounts described in the preceding two sentences do not constitute a penalty but rather liquidated damages in a reasonable amount to compensate the other Party for its efforts and resources expended and its opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby. If this Agreement is terminated as provided herein: (ia) Except as set forth in Section 12.2(beach Party shall return or destroy (at such Party’s option) belowall documents, none work papers and other materials of the parties hereto nor any of their respective partnersother Party relating to the transactions contemplated hereby, directorswhether obtained before or after the date hereof, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint Party, and several liability among the Piedmont Companies as expressly set forth in this Agreement) or all confidential information received by any of their respective Related Parties pursuant to this Agreement Party with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ other Party or Buyer’s Related Parties) as stated any Target Company shall be treated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andaccordance with the Confidentiality Agreement; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of the terminating Party, and to the extent practicable, be withdrawn from the Governmental Authority Entity or other Person to which made.; and (bc) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d)shall become null and void and of no further force and effect, provided that, with respect to this clause (B), only if Buyer is in material breach or default and all further obligations of its representations, warranties, covenants or obligations the Parties under this AgreementAgreement will terminate, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount except as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided set forth in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;9.2 and except for Section 6.2(b), Section 6.3, and Section 10.1.

Appears in 1 contract

Samples: Purchase and Sale Agreement (DigitalBridge Group, Inc.)

Procedure and Effect of Termination. (a) If Upon termination of this Agreement is terminated by either Seller or both of Buyer or Sellers Purchaser pursuant to Section 12.1SECTION 10.1, prompt written notice thereof thereof, indicating the termination provision in this Agreement claimed to provide a basis for such termination, shall forthwith be given to the other party Party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth terminate. Nothing in this Agreement if ARTICLE X shall relieve either Party of any liability for a party is in default or breach of its representationsthis Agreement prior to the termination hereof. Except as provided in the foregoing sentence, warrantiestermination of this Agreement shall terminate all outstanding obligations and liabilities between the Parties arising from this Agreement except those described in: (i) SECTION 8.1, covenants or obligations under this ARTICLE X, ARTICLE XI and ARTICLE XII; (ii) the Confidentiality Agreement. If ; and (iii) any other provisions of this Agreement which by their nature are intended to survive any such termination. (b) In the event that this Agreement is terminated as provided herein: (i) Except as set forth by Seller pursuant to SECTION 10.1(B)(III); or (ii) by Purchaser pursuant to SECTION 10.1(C)(IV) or SECTION 10.1(C)(V), then Seller shall on the date that is two (2) Business Days after such termination, pay to Purchaser a fee equal to Seven Million Five Hundred Thousand Dollars ($7,500,000) (the "TERMINATION FEE"), by wire transfer of immediately available funds to an account designated by Purchaser in Section 12.2(bwriting. Notwithstanding anything to the contrary in this Agreement, the Termination Fee (A) belowshall be the exclusive remedy of Purchaser under circumstances where the Termination Fee is payable by Seller in respect of a termination in accordance with SECTION 10.1(C)(IV) and (B) together with the rights granted to Purchaser under SECTION 10.2(F) shall be the exclusive remedy of Purchaser under circumstances where the Termination Fee is payable by Seller in respect of a termination in accordance with SECTION 10.1(C)(V), none and upon payment of the parties hereto nor any of their respective partnersTermination Fee in accordance with this SECTION 10.2(B), directorsexcept as otherwise provided in SECTION 10.2(E) and SECTION 10.2(F), officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) Seller shall not have any further liability or further obligation relating to or arising out of this Agreement. (c) In the other party event that this Agreement is terminated by Seller pursuant to SECTION 10.1(B)(I) or SECTION 10.1(B)(II), Purchaser shall pay to Seller within two (other 2) Business Days after the receipt of a notice therefor an amount equal to Seller's reasonable out-of-pocket expenses in connection with the negotiation, execution and delivery of this Agreement and the actions taken in furtherance of the consummation of this Agreement, by wire transfer of immediately available funds to an account designated by Seller in writing. (d) In the event that this Agreement is terminated by Purchaser pursuant to SECTION 10.1(C)(I), SECTION 10.1(C)(II) or SECTION 10.1(C)(III), Seller shall pay to Purchaser within two (2) Business Days after the receipt of a notice therefor an amount equal to Purchaser's reasonable out-of-pocket expenses in connection with the negotiation, execution and delivery of this Agreement and the actions taken in furtherance of the consummation of this Agreement, by wire transfer of immediately available funds to an account designated by Purchaser in writing. (e) As soon as practicable following a termination of this Agreement, but in no event later than thirty (30) days after such termination, Purchaser or Seller shall use commercially reasonable efforts, to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurredpracticable, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All withdraw all filings, applications and other submissions relating to the transactions contemplated hereby as Transactions made to which termination has occurred shall, to the extent practicable, be withdrawn from the any Governmental Authority or other Person to which madePerson. (bf) (i) If In the event that Purchaser terminates this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(dSECTION 10.1(C)(V), provided thatand at any time within the twelve (12) month period following the termination date Seller determines to enter into a transaction, with respect to this clause or a series of transactions, that if consummated would result in the sale of all or substantially all of the Products or the Product Line Business (Ban "ALTERNATIVE TRANSACTION"), only if Buyer Seller shall notify Purchaser of such determination within two (2) Business Days of making such determination (an "ALTERNATIVE TRANSACTION NOTICE"), which notification shall state that Seller is in prepared to enter into a definitive agreement as to such Alternative Transaction and include a summary of the material breach or default terms and conditions of its representationssuch Alternative Transaction. During the five (5) Business Day period after Purchaser's receipt of the Alternative Transaction Notice, warranties, covenants or obligations under this Agreement, then Sellers Purchaser shall have the right right, at its sole and absolute discretion, to receivemake an offer that Purchaser believes to be at least as favorable to Seller's stockholders as such Alternative Transaction; PROVIDED, that during such five (5) Business Day period, Seller shall negotiate in good faith with Purchaser (to the extent Purchaser wishes to negotiate) to enable Purchaser to make, modify and shall be paidcomplete a more favorable offer; PROVIDED, FURTHER, that upon receipt of such offer, the Escrow Amount board of directors of Seller shall, within two (2) Business Days, determine in good faith, after consultation with its financial advisor and legal counsel, as liquidated damages, and to whether such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies offer is at law or in equity least as favorable to which the Piedmont Companies might otherwise be entitledSeller's stockholders as such Alternative Transaction. Buyer and the Piedmont Companies each Purchaser acknowledges and agrees that in the event that the Parties do not agree upon the material terms of such liquidated damages amount is reasonable in light a more favorable offer after such five (5) Business Day period, that Seller may enter into a definitive agreement providing for implementation of such Alternative Transaction. In the event that Purchaser and Seller consummate a transaction for the sale of all or substantially all of the anticipated harm which would Products or the Product Line Business, Purchaser shall reimburse Seller for all amounts paid by Seller to Purchaser pursuant to SECTION 10.2(B) upon consummation of such transaction. For the avoidance of doubt, exceeding the purchase price offered under the Alternative Transaction by any dollar amount shall not be caused a condition to any offer by Buyer’s breach Purchaser made in accordance with this SECTION 10.2(F) being deemed by Seller's board of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions directors to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;a "more favorable offer."

Appears in 1 contract

Samples: Purchase Agreement (Ligand Pharmaceuticals Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers pursuant to Section 12.1the transactions contemplated hereby, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties identifying the provision hereof pursuant to which such termination is made, and this Agreement shall terminate become void and of no effect with no liability to the Financing Sources or any other Person on the part of any Party (or any officer, agent, employee, direct or indirect holder of any equity interest or securities, or Affiliates of any Party); provided that the obligations provided for in this Article XIII, Section 7.05 (Public Announcements), Article XV (General Provisions) and in the Confidentiality Agreement shall survive any such termination and, subject to Section 13.02(d) and Section 13.02(h), that nothing herein shall relieve any party from any liability for any willful and material breach of the provisions of this Agreement prior to the termination of this Agreement, in which case the non-breaching party shall be entitled to all rights and remedies available at law or in equity. (b) In the event of the termination of this Agreement and the abandonment of the transactions contemplated hereby hereby, each Party shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) belowreturn all documents, none work papers and other materials of the parties hereto nor any of their respective partnersother Party relating to the transactions contemplated hereby, directorswhether obtained before or after the execution hereof, officers, managers, members, shareholders, owners, employers, agents, representatives to the Party who furnished the same or Affiliates (each, a “Related Party”ii) shall have any liability or further obligation upon prior written notice to the other party (Party, destroy all documents, work papers and other than materials of the other Party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, and deliver notice to the Party seeking destruction of such documents that such destruction has been completed; provided, that, notwithstanding the foregoing, each Party shall be entitled to retain documents, work papers and other material to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or necessary to comply with applicable Law; provided, further, that all confidential information received by any of their respective Related Parties pursuant to this Agreement Party with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated other Parties shall be treated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andaccordance with the Confidentiality Agreement subject to applicable document retention policies. (iic) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the agreement of the Parties, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made. (bd) Notwithstanding anything to the contrary contained herein (ibut subject to the rights of the Company set forth in Section 15.10), in any circumstance in which the Termination Fee is payable hereunder, the sole and exclusive remedies available to the Company and the Seller for any breach of this Agreement prior to the termination of this Agreement, shall be termination of this Agreement pursuant to Section 13.01, if applicable, receipt of payment of the Transaction Expense Fee in accordance with Section 13.02(g), and receipt of the payment of the Termination Fee pursuant to Section 13.02(e) or Section 13.02(f), as applicable, (if applicable, less any payment of the Transaction Expense Fee previously paid by Buyer in accordance with Section 13.02(g)). In no event shall Buyer be required to pay the Termination Fee on more than one occasion or if the Closing occurs, and under no circumstances shall any of the Company, the Seller, or any of their respective Affiliates, individually or collectively, be permitted or entitled to receive both a grant of specific performance of this Agreement to cause the Closing to occur and any other remedy available to it at law or in equity, including payment of the Termination Fee. (e) If this Agreement is terminated: (A) validly terminated by Sellers Buyer or the Seller pursuant to Section 12.1(c); 13.01(f) or (B) by Sellers the Seller pursuant to Section 12.1(d13.01(g), provided thatthen Buyer shall promptly, but in no event later than five Business Days after the date of such termination, pay or cause to be paid to the Seller an amount equal to $9,000,000 (the “Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated by the Company. (f) If this Agreement is validly terminated by the Seller pursuant to Section 13.01(c), by Buyer pursuant to Section 13.01(d) or by Buyer or the Seller pursuant to Section 13.01(e) (unless, with respect to this clause (BSection 13.01(e), only if at the time of the Buyer is in material breach Stockholder Meeting, Buyer was entitled to terminate this Agreement pursuant to Section 13.01(b)), and, notwithstanding the termination of this Agreement, (i) at the time of such termination, a Buyer Alternative Transaction proposal was received by the Buyer Board or default publicly disclosed and not withdrawn and (ii) Buyer consummates a Buyer Alternative Transaction within nine months of its representations, warranties, covenants or obligations under the termination of this Agreement, then Sellers Buyer shall on or immediately following the date of the consummation of such Buyer Alternative Transaction, pay or cause to be paid to the Seller an amount equal to the Termination Fee, less any Transaction Expense Fee previously paid pursuant to Section 13.02(g), by wire transfer of immediately available funds to an account or accounts designated by the Seller. (g) Notwithstanding anything to the contrary contained herein, if this Agreement is validly terminated by Buyer or the Seller pursuant to Section 13.01(e) (unless, with respect to Section 13.01(e), at the time of the Buyer Stockholder Meeting, Buyer was entitled to terminate this Agreement pursuant to Section 13.01(b)), then Buyer shall promptly, but in no event later than five Business Days after the date of such termination, pay or cause to be paid to the Seller an amount equal to the out of pocket Transaction Expenses (if such fees are reasonably documented and provided in detailed form in writing to Buyer) incurred up to and including the date of termination (the “Transaction Expense Fee”); provided that in no event shall Buyer be required to pay such Transaction Expense Fee in an amount greater than $3,000,000 in the aggregate. (h) The Parties acknowledge that (1) the agreements contained in this Section 13.02 are an integral part of the transactions contemplated by this Agreement, (2) Buyer, the Company and Seller have expressly negotiated the right provisions of this Article XIII, (3) that, without these agreements, the Parties would not enter into this Agreement, (4) in light of the circumstances existing at the time of the execution of this Agreement (including the inability of the Parties to receivequantify the damages that may be suffered by the Company), the provisions of this Article XIII are reasonable and (5) the Termination Fee represents a good faith, fair estimate of the damages that the Seller would suffer as a result of the termination of this Agreement and the failure of the Parties to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, the Seller’s receipt and acceptance of the Termination Fee and the Transaction Expense Fee (if payable) pursuant to this Section 13.02, when payable, shall be paid(i) deemed liquidated damages for any and all losses or damages suffered or incurred by the Company or the Seller or any other Person in connection with this Agreement, the Escrow Amount as liquidated damages, Debt Commitment Letter and such liquidated damages shall be the Piedmont Companies’ transactions contemplated hereby and thereby and (ii) the sole and exclusive remedy of the Seller, the Company and the Company Subsidiaries, and any other Member against Buyer, its Affiliates or the Financing Sources for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Mergers to be consummated, in each case (with respect to both clause (i) and clause (ii)) in any circumstance in which the Seller is permitted to terminate this Agreement and cause the Seller to receive the Termination Fee pursuant to Sections 13.02(e) and (f), and upon the Company’s receipt of such amounts, none of Buyer, Merger Sub, the Buyer Survivor LLC or any of their respective Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided that (i) for purposes of clarity, in no event shall any Financing Source have any liability to any of the Parties or any of their respective Affiliates or any other Person for all or any portion of the Termination Fee and (ii) each of the Company, the Seller and Buyer shall remain liable under the Confidentiality Agreement. While the Company may pursue both a grant of specific performance, injunction or other equitable remedies under Section 15.10 and the payment of the Termination Fee under this Section 13.02, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance of the obligation to consummate the Closing and monetary damages in connection with this Agreement or any termination of this Agreement, including all or any portion of the Termination Fee. In the event of any termination of this Agreement in any circumstance in which the Seller is not entitled to receive the Termination Fee pursuant to Sections 13.02(e) or (f), the Seller and the Company shall be in lieu of any other able to pursue all rights and remedies available at law or in equity for any loss suffered as a result of any willful and material breach of any covenant or agreement in this Agreement or the failure of the Mergers to which the Piedmont Companies might otherwise be entitled. consummated; provided, that in no event will Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light its Affiliates have any liability with respect to this Agreement or any of the anticipated harm which would be caused by Buyer’s breach transactions contemplated hereby in excess of or default under $9,000,000 in the aggregate. Notwithstanding anything in to the contrary in this Agreement, but subject to Section 13.02(a), Buyer shall be able to pursue all rights and remedies available at law or in equity for any loss suffered as a result of the difficulty termination of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, this Agreement and the value failure of the Parties to consummate the transactions contemplated herein; provided, that, if this Agreement is terminated, in no event will the Seller and its Affiliates have any liability with respect to this Agreement or any of the transactions to be consummated hereunder. The parties agree that contemplated hereby in excess of $9,000,000 in the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;aggregate.

Appears in 1 contract

Samples: Merger Agreement (Lifetime Brands, Inc)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers and/or Seller pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth specified herein in this Agreement if the event a party is in default or breach in any material respect of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) below, none None of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the any other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties directors, officers, shareholders, employees, agents, or Affiliates pursuant to this Agreement with respect to which termination has occurredor otherwise, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 6.3, 6.9, 9.2, 9.3 and 11.1 hereof; (Sellers’ Broker)ii) Except for Guarantor, 5.6 (Buyer’s Broker)which shall have liability as Guarantor hereunder, 7.3 (Confidentiality), 7.7 (Non-Solicitation)if applicable, and 13.2 (Governmental Filing Fees)Mr. Xxxxxx X. Xxxxxx, 13.3 (Expenses)who shall have liability as guarantor pursuant to the Guaranty set forth in Section 6.10(a)(i)(6) of the Group II-V Asset Purchase Agreement to the extent set forth therein, Article 14 (Miscellaneous) and if applicable, notwithstanding anything herein or in applicable law to the contrary, none of the respective directors, officers, shareholders, employees, agents or Affiliates of any of the parties hereto shall have any liability or obligation to any other party or any of their respective directors, officers, shareholders, employees, agents or Affiliates pursuant to this Article 12Agreement or otherwise; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which made. (b) With respect to terminations pursuant to Section 9.1 hereof: (i) If this Agreement is terminated: terminated pursuant to Sections 9.1(a) or 9.1(f), then and in that event, none of the parties hereto shall have any recourse against or liability to the other parties hereto, except as stated in this Section 9.2(b) and Sections 6.3, 6.9, 9.2(a), 9.3 and 11.1 hereof or in any written agreement entered into by the parties in connection with such termination. (Aii) If this Agreement is terminated by Sellers Seller pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d9.1(b), provided that, with respect to this clause (B9.1(c) or 9.1(e), only if and Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers Seller shall have the right to receivepursue all legal and equitable remedies available to it against Buyer and Guarantor for breach of contract; provided, that, notwithstanding the foregoing, in the case of termination under Section 9.1(e) if the Group V Loan (as defined in the Group II-V Asset Purchase Agreement) has been made, Seller shall be entitled only to the remedies, if any, specified in the Group II-V Asset Purchase Agreement. (iii) If this Agreement is terminated by Buyer pursuant to Section 9.1(b), 9.1(d) or 9.1(e), and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be Seller is in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default of its obligations under this Agreement, then Buyer shall have the difficulty right to pursue all legal and equitable remedies available to it against Seller for breach of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;contract.

Appears in 1 contract

Samples: Asset Purchase Agreement (Paxson Communications Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated and abandonment of the transactions contemplated hereby by either or both of Buyer or Sellers the parties hereto pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given as promptly as practicable by the party so terminating to the other party parties and this Agreement shall forthwith terminate and shall become null and void and of no further effect, and the transactions contemplated hereby shall be abandoned without further action by any of the parties heretoSeller, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default Foreign Sellers or breach of its representations, warranties, covenants or obligations under this Agreement. Buyer. (b) If this Agreement is terminated as provided hereinpursuant to Section 8.1 hereof: (i) Except each party shall, as set forth in Section 12.2(b) belowsoon as practicable, none redeliver all documents, work papers and other materials of the other parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation relating to the other party (other than transactions contemplated hereby, whether so obtained before or after the execution hereof, to the extent of joint party furnishing the same, and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement all confidential information received by Buyer with respect to which termination has occurred, except for the obligations of Sellers Seller and Buyer (but not including Sellers’ or Buyer’s Related Partiesits Subsidiaries shall be treated in accordance with the Confidentiality Agreement pursuant to Section 5.2(b) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andhereof; (ii) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which made.; and (biii) (i) If this Agreement there shall be no liability or obligation hereunder on the part of the Seller, the Foreign Sellers or Buyer or any of their respective directors, officers, employees, Affiliates, controlling Persons, agents, advisors or Representatives, except that the Seller and the Foreign Sellers, on one hand, or Buyer, on the other hand, may have liability to the other party if the basis of termination is terminated: (A) a breach by Sellers pursuant to Section 12.1(c); the Seller or (B) by Sellers pursuant to Section 12.1(d)the Foreign Sellers, provided thaton one hand, with respect to this clause (B)or Buyer, only if Buyer is in material breach on the other hand, of one or default more of its representations, warranties, covenants or obligations under the provisions of this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree except that the liquidated damages obligations provided for in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;5.2(b) and Article X hereof shall survive any such termination.

Appears in 1 contract

Samples: Purchase Agreement (Borland Software Corp)

Procedure and Effect of Termination. (a) If Any party or parties who have the right to terminate this agreement and abandon the transactions contemplated by this Agreement is terminated may do so by either or both of Buyer or Sellers pursuant to Section 12.1, prompt delivering written notice thereof shall forthwith be given of such termination and abandonment to the other party parties and this Agreement such termination and abandonment shall terminate and the transactions contemplated hereby shall be abandoned occur upon such delivery without any further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementPerson. If this Agreement is terminated as provided hereinpursuant to Section 7.1 of this Agreement: (ia) Except as set forth in Section 12.2(b) beloweach party shall redeliver all documents, none work papers and other materials of the other parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation relating to the other party (other than transactions contemplated by this Agreement, whether so obtained before or after the execution of this Agreement, to the extent party furnishing the same or, upon prior written notice to such party, shall destroy all such documents, work papers and other materials and deliver notice to the parties seeking destruction of joint such documents that such destruction has been completed, and several liability among the Piedmont Companies as expressly set forth in this Agreement) or all confidential information received by any of their respective Related Parties pursuant party to this Agreement with respect to which termination has occurred, except for the obligations other party shall be treated in accordance with the Confidentiality Agreement and Section 5.2(b) of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andAgreement; (iib) All all filings, applications and other submissions relating made pursuant to the transactions contemplated hereby as to which termination has occurred this Agreement shall, at the option of Sellers, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) (iexcept as otherwise provided in Section 7.2(d) If below, there shall be no liability or obligation under this Agreement on the part of Sellers, the Companies or Buyer or any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives, except that a party shall continue to have liability to the other parties if the basis of termination is terminated: fraud or a willful, material breach by such party of one or more of the provisions of this Agreement, and except that the obligations provided for in this Section and Sections 5.6, 5.9 and 10.1 of this Agreement and in the Confidentiality Agreement shall survive any such termination; and (Ad) by Sellers if after any extension of the Termination Date pursuant to Section 12.1(c); or (B) by Sellers pursuant the second proviso to Section 12.1(d), provided that, with respect to this clause (Be) of Section 7.1 of this Agreement either party terminates this Agreement on the Termination Date and on such date the only condition to Closing not satisfied or waived is Section 6.2(d), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have pay Buyer a termination fee of $15.0 million in cash by wire transfer of immediately available funds promptly following the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu termination of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Purchase Agreement (Donnelley R H Inc)

Procedure and Effect of Termination. (a) If Except as otherwise set forth in this Section 8.2, in the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated by either or both of Buyer or Sellers this Agreement pursuant to Section 12.18.1, prompt written notice thereof shall will forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall will terminate and become void and have no effect and the transactions contemplated hereby shall will be abandoned without further action by any of the parties hereto, but subject to Party and without limiting any Liability on the part of any Party or its directors, officers, employees, Affiliates, agents or other Representatives, other than Liability of a Party, as the rights case may be, for any Willful Breach of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementoccurring prior to such termination. If this Agreement is terminated as provided hereinpursuant to Section 8.1: (ia) Except as set forth in Section 12.2(b) beloweach Party will redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated by this Agreement, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, will destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties will be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 6.3(c), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shallmade pursuant hereto will, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) notwithstanding any provision in this Agreement to the contrary, the obligations provided for in this Section 8.2 and Section 6.2(c) (Access to Information) Section 6.6 (Public Announcements), Section 10.1 (Fees and Expenses), Section 10.2 (Notices), Section 10.3 (Severability), Section 10.5 (No Third Party Beneficiaries), Section 10.8 (Consent to Jurisdiction), Section 10.9 (Waiver of Jury Trial), Section 10.10 (Governing Law) and Section 10.19 (No Recourse for Debt Financing Sources) hereof and in the Confidentiality Agreement will survive any such termination; (d) notwithstanding anything set forth in this Agreement or the Confidentiality Agreement to the contrary, the Confidentiality Agreement will survive the termination of this Agreement for a period of five years following the date of such termination and the term of the Confidentiality Agreement will be automatically amended to be extended for such additional five year period; (e) if this Agreement is terminated by (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c8.1(c) (as a result of the conditions set forth in Section 7.2(a) or Section 7.2(b) having become incapable of fulfillment) or Section 8.1(e); , or (Bii) by Sellers or Buyer pursuant to Section 12.1(d8.1(d) and, at the time of such termination, Sellers would have been entitled to terminate this Agreement pursuant to Section 8.1(c) (as a result of the conditions set forth in Section 7.2(a) or Section 7.2(b) having become incapable of fulfillment) or Section 8.1(e), provided thatthen Buyer will pay, with respect or cause to this clause be paid, to Sellers an amount equal to $107,100,000 (Bsuch amount, the “Termination Fee”), only if by wire transfer of immediately available funds within five Business Days following such termination to a bank account nominated by Sellers as at the date of termination. In no event shall Buyer is in material breach or default be required to pay the Termination Fee on more than one occasion. The Parties acknowledge and agree that (i) the fees and other provisions of its representations, warranties, covenants or obligations under this Section 8.2 are an integral part of the transactions contemplated by this Agreement, then Sellers shall have (ii) the right to receiveTermination Fee, if and shall be when paid, the Escrow Amount as liquidated damages, and such will constitute liquidated damages shall be (and not a penalty) and the Piedmont Companies’ sole and exclusive remedy of Sellers, any member of the Company Group or any of their respective Affiliates against Buyer, its Affiliates and the Debt Financing Sources for all Liabilities, losses and damages in respect of this Agreement or the transactions contemplated hereby, and (iii) without these agreements, the Parties would not have entered into this Agreement. If Buyer fails to pay the Termination Fee when due, (x) such fee will accrue interest for the period commencing on the sixth Business Day following the termination of this Agreement through the date the Termination Fee is actually paid, at a rate equal to (i) the rate of interest published from time to time by The Wall Street Journal, Eastern Edition, as the “prime rate” at large U.S. money center banks on the date this Agreement is terminated plus (ii) two percentage points (2.0%), (y) Buyer will also pay to Sellers in addition to the Termination Fee and such other amounts, all of Sellers’ costs and out-of-pocket expenses (including attorneys’ fees) incurred in connection with all actions to collect the Termination Fee and Interest, if any, and (z) Buyer will also make any reimbursement or indemnification payments pursuant to the last two sentence of Section 6.20(d) (such interest, costs, expenses, reimbursement and indemnification described in the preceding clauses (x), (y) and (z), up to a maximum of $5,000,000 in the aggregate, the “Enforcement and Reimbursement Costs”); provided that in no event shall the aggregate amount of interest, costs, expenses, reimbursement and indemnification payable by Buyer pursuant to clauses (x), (y) and (z) exceed $5,000,000. Notwithstanding anything to the contrary in this Agreement, in the event the Closing does not occur, if Buyer breaches this Agreement (whether willfully (including any Willful Breach), intentionally, unintentionally or otherwise) or fails to perform hereunder (whether willfully (including any Willful Breach), intentionally, unintentionally or otherwise), then, except for Sellers’ rights to seek specific performance in accordance with Section 10.12 and Sellers’ rights under the Limited Guarantee, the sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) of Sellers, Parent, the Company or any of their respective Affiliates and any of their respective former, current or future directors, managers, general or limited partners, officers, employees, members, stockholders, equityholders, Affiliates, financial advisors, auditors, agents, counsel or other Representatives (collectively, together with their respective successors and assigns, the “Seller Related Parties”) against Buyer, the Sponsor, the Debt Financing Sources (without limitation of Section 10.19) or any of their respective Affiliates and any of their respective former, current or future directors, managers, general or limited partners, officers, employees, members, stockholders, equityholders, Affiliates, financial advisors, auditors, agents, counsel or other Representatives (collectively, together with their respective successors and assigns, the “Buyer Related Parties”) for any breach (whether willfully (including any Willful Breach) intentionally, unintentionally or otherwise), loss, damage or failure to perform (including any Willful Breach) under this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of the transactions contemplated hereby or the Debt Commitment Letter, Fee Letter or Debt Financing Agreements or any oral representation made or alleged to have been made in connection herewith or therewith shall be for Sellers to terminate this Agreement as provided herein and receive payment of the Termination Fee, if payable pursuant to this Section 8.2(e), and, if applicable, Enforcement and Reimbursement Costs, and upon payment of such amounts (i) no Buyer Related Party shall have any further liability or obligation relating to or arising out of this Agreement or any certificate or other document delivered in lieu connection herewith or any oral representation made or alleged to have been made in connection herewith or therewith (whether in equity or at law, in contract, in tort or otherwise, and whether by or through attempted piercing of the corporate, limited liability company or partnership veil, by or through a claim by or on behalf of a party or another Person or otherwise) and (ii) no Seller Related Party shall be entitled to bring or maintain, and in no event shall support, facilitate or encourage the bringing of, any other remedies at Action (under any legal theory, whether sounding in law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies (in each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s case whether for breach of contract, in tort or default under otherwise)) against a Buyer Related Party with respect to, arising out of, or in connection with this AgreementAgreement or any certificate or other document delivered in connection herewith (including any Action relating to the Debt Financing, the difficulty of proof of loss, Equity Financing or the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value Limited Guarantee or any of the transactions contemplated hereby or thereby (or the abandonment or termination thereof, or any matters forming the basis for such termination) (in any case, whether willfully, intentionally, unintentionally or otherwise), and Sellers shall cause any such Action pending as of any termination of this Agreement to be consummated hereunderdismissed with prejudice as promptly as practicable after such termination and in any event within two Business Days after the payment of such amounts. The parties agree that In no event shall any Seller or the liquidated Company seek on its own behalf or on behalf of any Seller Related Party any damages provided from, or otherwise bring any Action against, any Buyer Related Party in connection with this Agreement or the transactions contemplated hereby (including any Action relating to the Debt Financing or the Debt Financing Agreements), other than an Action to recover the Termination Fee and, if applicable, Enforcement and Reimbursement Costs, to enforce Sellers’ rights under the Limited Guarantee in accordance with its terms or for specific performance in accordance with Section 10.12. For the avoidance of doubt, while Sellers may pursue both a grant of specific performance (other than against any Debt Financing Source) and the payment of the Termination Fee, (x) under no circumstances shall Sellers or the Company be entitled to monetary damages, except, solely to the extent required by this Section are intended 8.2(e), the Termination Fee and (y) under no circumstances shall Sellers or the Company be permitted or entitled to limit receive both a grant of specific performance pursuant to Section 10.12(b) and any portion of the claims that the Piedmont Companies may have against Buyer;Termination Fee.

Appears in 1 contract

Samples: Equity Purchase Agreement (Roper Technologies Inc)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers and/or Seller pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth specified herein in this Agreement if the event a party is in default or breach in any material respect of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) below, none None of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the any other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties directors, officers, shareholders, employees, agents, or Affiliates pursuant to this Agreement with respect to which termination has occurredor otherwise, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 6.3, 6.9, 9.2, 9.3 and 11.1 hereof; (Sellers’ Broker)ii) Except for Guarantor, 5.6 (Buyer’s Broker)which shall have liability as Guarantor hereunder, 7.3 (Confidentiality), 7.7 (Non-Solicitation)if applicable, and 13.2 (Governmental Filing Fees)Mr. Xxxxxx X. Xxxxxx, 13.3 (Expenses)who shall have liability as guarantor pursuant to the Guaranty set forth in Section 6.10(a)(i)(6) of the Group II-V Asset Purchase Agreement to the extent set forth therein, Article 14 (Miscellaneous) and if applicable, notwithstanding anything herein or in applicable law to the contrary, none of the respective directors, officers, shareholders, employees, agents or Affiliates of any of the parties hereto shall have any liability or obligation to any other party or any of their respective directors, officers, shareholders, employees, agents or Affiliates pursuant to this Article 12Agreement or otherwise; and (iiiii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made. (b) With respect to terminations pursuant to Section 9.1 hereof: (i) If this Agreement is terminated: terminated pursuant to Sections 9.1(a) or 9.1(f), then and in that event, none of the parties hereto shall have any recourse against or liability to the other parties hereto, except as stated in this Section 9.2(b) and Sections 6.3, 6.9, 9.2(a), 9.3 and 11.1 hereof or in any written agreement entered into by the parties in connection with such termination. (Aii) If this Agreement is terminated by Sellers Seller pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d9.1(b), provided that, with respect to this clause (B9.1(c) or 9.1(e), only if and Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers Seller shall have the right to receivepursue all legal and equitable remedies available to it against Buyer and Guarantor for breach of contract; provided, that, notwithstanding the foregoing, in the case of termination under Section 9.1(e) if the Group V Loan (as defined in the Group II-V Asset Purchase Agreement) has been made, Seller shall be entitled only to the remedies, if any, specified in the Group II-V Asset Purchase Agreement. (iii) If this Agreement is terminated by Buyer pursuant to Section 9.1(b), 9.1(d) or 9.1(e), and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be Seller is in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default of its obligations under this Agreement, then Buyer shall have the difficulty right to pursue all legal and equitable remedies available to it against Seller for breach of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;contract.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ccci Capital Trust Iii)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.17.1, prompt written notice thereof shall forthwith be given to the other party parties and this Agreement (other than Section 6.6 and as provided in paragraph (b) below) shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementparties. If this Agreement is terminated as provided herein: (ia) Except as All information received by Buyer with respect to the Business, PRI, Seller Parent or any of their Affiliates shall be held confidential. All copies of such information in Buyer's possession or in the possession of any of its representatives shall be returned to Seller Parent or destroyed by Buyer. Buyer shall comply with the provisions set forth in the Confidentiality Agreement dated June 6, 1996, between Seller and Xxxxxxx X. Xxxxxxx. (b) Any termination pursuant to subparagraph (b), (c), (d) or (e) of Section 12.2(b) below7.1 shall not be deemed a waiver of any rights or remedies otherwise available under this Agreement, none by operation of the parties law or otherwise; provided, however, that in any action by a party hereto nor against any other party for specific performance or damages or to assert or enforce any of their respective partnersits rights or remedies hereunder, directorsno shareholder (other than Seller Parent in its capacity as a party), officersdirector, managersofficer, members, shareholders, owners, employers, agents, representatives representative or Affiliates (each, a “Related Party”) agent of such other party shall have any liability or further obligation to in connection therewith; (c) Concurrently with the other party (other than to the extent execution and delivery of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement, Buyer and/or MRIACQ has delivered to Seller an irrevocable letter of credit issued by Creditanstalt-Bankverein in the amount of $250,000. Upon the Closing or if the Closing shall not have occurred because of (i) the failure of PRI to receive all required liquor licenses, (ii) Buyer having rightfully and unilaterally terminated this Agreement pursuant to Section 7.1(b) or any (d) hereof or (iii) a termination of their respective Related Parties this Agreement pursuant to Section 7.1(a) or (f) hereof, such letter of credit shall be returned to Buyer or MRIACQ, as appropriate. If the Closing does not occur as a result of the unilateral and rightful termination of this Agreement with respect by Seller or Seller Parent pursuant to which termination Section 7.1(b) (except in the event PRI has occurrednot received all required liquor licenses by March 30, except for 1997) or (e) hereof, Seller shall be entitled to draw against the obligations full amount of Sellers such letter of credit as liquidated damages and Buyer not as a penalty (but not including Sellers’ the parties acknowledging that actual damages may be difficult or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Brokerimpossible to quantify), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (iid) All filings, applications and other submissions relating made pursuant to Section 6.3 or prior to the transactions contemplated hereby as to which termination has occurred execution of this Agreement in contemplation thereof shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person person to which made. (be) (i) If Any termination of this Agreement is terminated: (A) by Sellers pursuant shall also act as and be deemed to Section 12.1(c); or (B) by Sellers pursuant be a termination of the PRI Agreement, and a termination of the MRI Agreement shall be deemed to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default be a termination of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Stock Purchase Agreement (Mortons Restaurant Group Inc)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to as provided in Section 12.17.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (ia) Except as set forth in Section 12.2(bupon request therefor, each party will redeliver all documents, work papers and other material of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same; (b) below, none of the parties information received by or on behalf of the Buyer with respect to the Business, the Sellers and MTI shall at any time be used for the advantage of the Buyer to the detriment of the Business, the Sellers or MTI and the Buyer will use its best efforts to prevent the disclosure thereof to third persons except as may be required by law; (c) no party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the any other party (other than to the extent this Agreement pursuant to this Agreement except as stated in this Section 7.2 and in Sections 5.3, 5.5, and 5.8; provided, however, that nothing in this Section 7.2 shall be deemed to release any party from any liability for breach by such party of joint and several liability among the Piedmont Companies as expressly any of its covenants set forth in this Agreement which occurs on or before the date of the termination of this Agreement) or any of their respective Related Parties pursuant to ; and this Agreement with respect to which termination has occurredwill be of no further force and effect except that this Section 7.2 and Sections 5.3, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker)5.5, 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses)5.8, Article 14 (Miscellaneous) VIII and this Article 12IX shall remain in effect; and (iid) All all filings, applications applications, and other submissions relating made pursuant to the transactions contemplated hereby as to which termination has occurred Section 5.6 and Section 5.11 shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person person to which made. (b) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;

Appears in 1 contract

Samples: Agreement of Purchase and Sale (Dow Jones & Co Inc)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated in whole (or in part with respect only to any particular Group Sale as expressly provided herein) by either or both of Buyer and/or PCC or Sellers LPI pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and (in whole or in part, as the case may be) and, to the extent this Agreement is terminated, the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth specified herein in this Agreement if the event a party is in default or breach in any material respect of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein, to the extent this Agreement is terminated: (i) Except as set forth in Section 12.2(b) below, none None of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the any other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties directors, officers, shareholders, employees, agents, or Affiliates pursuant to this Agreement with respect to which termination has occurredor otherwise, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 6.3, 6.11 (Sellers’ Brokerif applicable), 5.6 9.2, 9.3, 9.4 and 11.1 hereof; (Buyer’s Broker)ii) Except for Guarantor, 7.3 (Confidentiality)which shall have liability as Guarantor hereunder to the extent set forth herein, 7.7 (Non-Solicitation)if applicable, and 13.2 Mr. Xxxxxx X. Xxxxxx, who shall have liability as guarantor pursuant to the Guaranty described in Section 6.10(a)(i)(6) to the extent set forth therein, if applicable, notwithstanding anything herein or in applicable law to the contrary, none of the respective directors, officers, shareholders, employees, agents or Affiliates of any of the parties hereto shall have any liability or obligation to any other party or any of their respective directors, officers, shareholders, employees, agents or Affiliates pursuant to this Agreement or otherwise; (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (iiiii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.. 66 (b) With respect to terminations pursuant to Section 9.1 hereof: (i) If this Agreement is terminated: (A) by Sellers terminated pursuant to Section 12.1(cSections 9.1(a) or 9.1(g); , then and in that event, none of the parties hereto shall have any recourse against or liability to the other parties hereto, except as stated in Sections 6.3, 6.11, 9.2, 9.3, 9.4 and 11.1 hereof or in any written agreement entered into by the parties in connection with such termination. (Bii) If this Agreement is terminated by Sellers PCC pursuant to Section 12.1(dSections 9.1(b), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers PCC shall have the right to receivepursue all legal and equitable remedies available against Buyer and Guarantor for breach of contract; provided, and however, that to the extent Buyer has defaulted or breached in the manner referenced in Section 9.1(b), in determining Seller's damages hereunder, Buyer shall be paiddeemed to have breached its obligations to make the Group V Loan and to consummate the Group I Sale, the Escrow Amount as liquidated damagesGroup II/III Sale, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer Group IV Sale and the Piedmont Companies each acknowledges Group V Sale. (iii) If this Agreement is terminated by Buyer pursuant to Section 9.1(c), Buyer shall have the right to pursue all legal and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s equitable remedies available to it for breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;contract.

Appears in 1 contract

Samples: Asset Purchase Agreement (Ccci Capital Trust Iii)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated in whole (or in part with respect only to any particular Group Sale as expressly provided herein) by either or both of Buyer and/or PCC or Sellers LPI pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and (in whole or in part, as the case may be) and, to the extent this Agreement is terminated, the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth specified herein in this Agreement if the event a party is in default or breach in any material respect of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein, to the extent this Agreement is terminated: (i) Except as set forth in Section 12.2(b) below, none None of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the any other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties directors, officers, shareholders, employees, agents, or Affiliates pursuant to this Agreement with respect to which termination has occurredor otherwise, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 6.3, 6.11 (Sellers’ Brokerif applicable), 5.6 (Buyer’s Broker)9.2, 7.3 (Confidentiality)9.3, 7.7 (Non-Solicitation), 9.4 and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and11.1 hereof; (ii) Except for Guarantor, which shall have liability as Guarantor hereunder to the extent set forth herein, if applicable, and Mr. Xxxxxx X. Xxxxxx, who shall have liability as guarantor pursuant to the Guaranty described in Section 6.10(a)(i)(6) to the extent set forth therein, if applicable, notwithstanding anything herein or in applicable law to the contrary, none of the respective directors, officers, shareholders, employees, agents or Affiliates of any of the parties hereto shall have any liability or obligation to any other party or any of their respective directors, officers, shareholders, employees, agents or Affiliates pursuant to this Agreement or otherwise; (iii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.. 66 - 61 - (b) With respect to terminations pursuant to Section 9.1 hereof: (i) If this Agreement is terminated: terminated pursuant to Sections 9.1(a) or 9.1(g), then and in that event, none of the parties hereto shall have any recourse against or liability to the other parties hereto, except as stated in Sections 6.3, 6.11, 9.2, 9.3, 9.4 and 11.1 hereof or in any written agreement entered into by the parties in connection with such termination. (Aii) If this Agreement is terminated by Sellers PCC pursuant to Sections 9.1(b), PCC shall have the right to pursue all legal and equitable remedies available against Buyer and Guarantor for breach of contract; provided, however, that to the extent Buyer has defaulted or breached in the manner referenced in Section 9.1(b), in determining Seller's damages hereunder, Buyer shall be deemed to have breached its obligations to make the Group V Loan and to consummate the Group I Sale, the Group II/III Sale, the Group IV Sale and the Group V Sale. (iii) If this Agreement is terminated by Buyer pursuant to Section 12.1(c9.1(c); or , Buyer shall have the right to pursue all legal and equitable remedies available to it for breach of contract. (Biv) If this Agreement is terminated by Sellers Seller pursuant to Section 12.1(d9.1(d) or (f), provided that, with respect to this clause (B), only if and Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers the following provisions shall apply: (1) If termination is with respect to all Group Sales, and the LPI Sale has not occurred, Seller shall have the right to receivepursue all legal and equitable remedies available to it against Buyer or Guarantor for breach of contract. (2) If the LPI Sale has been consummated and termination is with respect to all Group Sales, then and in that event (A) the Group V Loan shall be reduced in a principal amount of $56,967,153, which reduction shall also be provided for in the Clear Channel Loan Agreement; and (B) the principal amount of the Group IV Loan shall be reduced by $3,125,000 and the Group IV-B Note shall be canceled in connection therewith. The foregoing remedies shall constitute liquidated damages and the exclusive remedies of Seller and LPI for Buyer's breach; provided, however, that if the LPI Sale has been consummated, nothing contained herein shall limit or otherwise restrict the rights and liabilities of PCC and LPI with respect to each other in connection with a termination of this Agreement with respect to any of the Group Sales. Notwithstanding the foregoing, to the extent the following agreements have been entered into and to the extent expressly provided therein (but subject to the acceleration, termination and other provisions thereof), the provisions of the TBAs applicable in the event of termination, the Intercreditor Agreement, the Clear Channel Loan Agreement (and the promissory note and Security Documents delivered pursuant thereto), the LPI Note (and the Subordinated Guaranty delivered therewith), the Group IV Loan Agreement, the Group IV-A Note, the Group IV-B Note and the Group IV-C Note (and the security documents delivered pursuant thereto) shall remain in full force and effect and shall be paid, unimpaired by any termination of this Agreement or payments made by Buyer or Guarantor pursuant to this Section. (3) If the Escrow Amount as liquidated damagesGroup II/III Closing and Group V Closing have occurred, and such Buyer is in breach of its obligations to consummate the Group IV Sale, then the principal amount of the Group IV Loan shall be reduced by $3,125,000 and the Group IV-B Note shall be canceled in connection therewith. The foregoing remedies shall constitute liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable exclusive remedies of PCC in light respect of the anticipated harm which would be caused by Buyer’s 's breach of its obligations with respect to the Group IV Sale, but, to the extent they do not relate to such sale, without impairing any of PCC's other rights under this Agreement and the documents related hereto or default delivered in connection therewith. (v) If this Agreement is terminated by Seller pursuant to Section 9.1(d) or (f), and Buyer is not in breach of its obligations under this Agreement, then the difficulty of proof of lossfollowing provisions shall apply: (2) If termination is effective with respect to the Group IV Assets, and to the extent expressly provided in the Group IV Loan (but subject to the acceleration, termination and other provisions thereof), the inconvenience Group IV Loan shall be repaid in accordance with the terms of the Group IV Loan. (vi) If this Agreement is terminated by Buyer pursuant to Section 9.1(e) or (f), then the following provisions shall apply: (1) If termination is with respect to all Group Sales and infeasibility if Seller is in breach of otherwise obtaining an adequate remedyits obligations under this Agreement to consummate such Group Sales, Buyer shall have the right to pursue all legal and equitable remedies available to it. (2) If termination is with respect only to the Group IV Sale and if Seller is in breach of its obligations under this Agreement to consummate such Group Sale, Buyer shall have the right to pursue all legal and equitable remedies available to it in respect of the Group IV Sale. (3) If and to the extent the following agreements have been entered into and to the extent expressly provided therein (but subject to the acceleration, termination and other provisions thereof), the provisions of the TBAs applicable in the event of termination, the Intercreditor Agreement, the Clear Channel Loan Agreement (and the promissory note and the Security Documents delivered pursuant thereto), and the value Group IV-A Note and the Group IV-B Note (and the security documents delivered pursuant thereto) shall remain in full force and effect and shall be unimpaired by any termination of this Agreement. (c) If the Group I Sale has been consummated pursuant to the Group I Purchase Agreement with respect to any of the transactions Repurchase Assets, and (i) this Agreement is terminated with respect to be consummated (A) all Group Sales or (B) the Group II/III Sale and the Group V Sale or (ii) the Group II/III Closing and the Group V Closing have not occurred on or before the Termination Date, the parties shall have the following rights and obligations: (1) If this Agreement has been terminated other than as a result of Seller's breach or default of its obligations hereunder. The parties agree that , PCC shall have the liquidated damages provided right to cause Buyer to sell back to PCC, and upon request by PCC, Buyer shall sell back to PCC, the Group I Repurchase Assets in accordance with and subject to 69 - 64 - the terms and conditions set forth in Section 6.10 of the Group I Purchase Agreement. (2) If this Agreement has been terminated other than as a result of Buyer's breach or default of its obligations hereunder, Buyer shall have the right to cause PCC to repurchase from Buyer, and upon the request of Buyer, PCC shall repurchase from Buyer, the Group I Repurchase Assets in accordance with and subject to the terms and conditions set forth in Section are intended to limit 6.10 of the claims that the Piedmont Companies may have against Buyer;Group I Purchase Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Paxson Communications Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers the Company, on the one hand, and the Acquiring Entities, on the other hand, pursuant to Section 12.17.1, prompt written notice thereof shall forthwith be given by the terminating party to the other party hereto, and this Agreement shall thereupon terminate and become void and have no effect, and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any except that the provisions of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: Section 5.2 (i) Except as set forth in Section 12.2(b) below, none of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Public Announcements; Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 Section 7.3 (Expenses), Article 14 Section 8.2 (MiscellaneousGoverning Law), and Section 8.4 (Notices) and shall survive the termination of this Article 12Agreement; and (ii) All filingsPROVIDED, applications and other submissions relating to the transactions contemplated hereby as to which HOWEVER, that such termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which madeshall not relieve any party hereto of any liability for any breach of this Agreement. (b) In the event that (i) If this Agreement is terminated: (A) terminated by Sellers Parent pursuant to Section 12.1(c7.1(c); , or (B) by Sellers the Company or Parent pursuant to Section 12.1(d7.1(e) or Section 7.1(f), provided thatand either (C) a Competing Proposal shall have been previously publicly proposed or publicly announced or any person has previously publicly announced an intention (whether or not conditional and whether or not withdrawn) to make a Competing Proposal, or (D) within 12 months after such termination, the Company or any of its Subsidiaries enters into any definitive agreement with respect to, or consummates, any Competing Proposal, or (ii) this Agreement is terminated by the Company pursuant to Section 7.1(h) or the Parent pursuant to Section 7.1(g), then the Company shall pay Parent a fee equal to $2,475,000 (the "TERMINATION FEE") by wire transfer of same day funds to an account designated by Parent, in the case of a payment as a result of any event referred to in Section 7.2(b)(i)(A) or (B) and (D), upon the first to occur of the entering into any definitive agreement or the consummation of any Competing Proposal and in the case of a payment as a result of any event referred to in Section 7.2(b)(ii) or Section 7.2(b)(i)(A) or (B) and (C), promptly, but in no event later than the date of such termination. (c) The Company shall reimburse Parent and Merger Sub for all their expenses incurred in connection with this Agreement and the Merger in the event this Agreement is terminated in the circumstances described in Section 7.2(b), promptly, but in no event later than the date of such termination; PROVIDED, however, that the aggregate amount of such reimbursement shall not exceed $412,500 in the aggregate. All payments made pursuant to this clause Section 7.2(c) shall be made by wire transfer of the same day funds to an account designated by Parent. (B), only if Buyer is d) Notwithstanding any other provisions in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers any payments otherwise to be made by the Company to Parent under Sections 7.2(b) and (c) hereof for any calendar year shall have not exceed the right sum of (a) the amount that it is determined should not be gross income of Parent for purposes of the requirements of Sections 856(c)(2) and (3) of the Code, with such determination to receivebe set forth in an opinion of outside tax counsel selected by Parent, and which opinion shall be paidreasonably satisfactory to Parent (which opinion is referred to as a "NO GROSS INCOME OPINION") plus (b) such additional amount that it is estimated can be paid to Parent in such taxable year without creating a risk that the payment would cause Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, determined as if the Escrow Amount payment of such amount did not constitute income that qualifies as liquidated damagesgross income for purposes of Section 856(c)(2) of the Code, and such liquidated damages which determination shall be made by independent tax accountants to Parent and (c) in the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which event Parent receives a letter from tax counsel (the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;"ALTERNATIVE TAX

Appears in 1 contract

Samples: Merger Agreement (Atlantic Realty Trust)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 9.1: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties shall be treated in accordance with the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Confidentiality Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of the Company, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (bc) if the Agreement is terminated pursuant to Section 9.1(b), Section 9.1(c), or Section 9.1(d), then, if applicable, the breaching Party shall be liable to the non-breaching Party, and (ii) the obligations provided for in this Section 9.2, Section 6.3 (Public Announcements), Section 10.5(r) (Liability Limits), Section 11.1 (Fees and Expenses), Section 11.2 (Notices), Section 11.3 (Severability), Section 11.7 (Consent to Jurisdiction, Etc.) and Section 11.9 (Governing Law) hereof and in the Confidentiality Agreement shall survive any such termination; and (d) Notwithstanding the foregoing, until a Closing occurs (and including if this Agreement is terminated for any reason) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); the extent that any Stockholder has any liability or (B) by Sellers pursuant obligation to Section 12.1(d)Buyer, provided that, Buyer’s sole recourse with respect to this clause any such liability shall be to such Stockholder, (B)ii) to the extent that the Company has any liability or obligation to Buyer, only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers Buyer’s sole recourse with respect to any such liability shall have be to the right to receiveCompany, and shall (iii) no recourse hereunder or under any documents or instruments delivered in connection herewith may be paidmade against any officer, agent or employee of any Stockholder or the Company, or any direct or indirect holder of any equity interests or securities of any Stockholder or the Company, any Affiliate of any Stockholder or the Company, or any direct or indirect director, officer, employee, partner, affiliate, member, controlling person or representative of any of the foregoing. From and after the Closing, the Escrow Amount as liquidated damages, liabilities and such liquidated damages shall be obligations of the Piedmont Companies’ sole and exclusive remedy and Stockholders to Buyer shall be in lieu of accordance with Article X hereof. Notwithstanding any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s foregoing, nothing contained in this Agreement shall relieve any Party from liability for any willful and intentional breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Stock Purchase Agreement (XPO Logistics, Inc.)

Procedure and Effect of Termination. (a) If In the event of termination of ----------------------------------- this Agreement is terminated and abandonment of the transactions contemplated hereby by either or both of Buyer or Sellers the parties pursuant to Section 12.110.1, prompt written notice thereof shall forthwith be given by the terminating party to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (ia) Except as set forth in Section 12.2(b) below, none of the parties hereto nor any of their respective partnerstrustees, directors, officersofficers or Affiliates, managersas the case may be, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties trustees, directors, officers or Affiliates, as the case may be, pursuant to this Agreement with respect to which termination has occurredAgreement, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) in each case as stated in this Section 10.2 and in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker7.2(b), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 127.11; and (iib) All all filings, applications and other submissions relating made pursuant to the transactions contemplated hereby as to which termination has occurred shallthis Agreement, to the extent practicable, shall be withdrawn from the Governmental Authority agency or other Person person to which they were made. (b) (i) If . Notwithstanding any other term or provision of this Agreement is terminated: (A) by Sellers or the other documents delivered pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers each of the parties hereby agrees that no officers, directors, employees, agents or attorneys of such party shall have be liable hereunder for any profit, loss of capital, consequential, special, indirect, punitive or incidental damages that may be incurred by any other party as a result of any action or inaction by any other party hereunder or in connection with this Agreement or any agreement contemplated to be executed in connection with this agreement, and hereby knowingly, voluntarily and intentionally waives the right to receive, and shall be paid, the Escrow Amount as liquidated seek any such damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Asset Purchase Agreement (Pp&l Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.17.1 hereof, prompt written notice thereof shall forthwith be given by the parties so terminating to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of Seller, on the parties heretoone hand, but subject to and without limiting any of or Buyer, on the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementother hand. If this Agreement is terminated as provided hereinpursuant to Section 7.1 hereof: (ia) Except as set forth in Section 12.2(b) belowEach party shall redeliver all documents, none work papers and other materials of the other parties relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same, and all confidential information received by any party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation with respect to the other party (other than to shall be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this AgreementSection 5.2(b) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andhereof; (iib) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of Seller, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person person to which made.; and (bc) (i) If this Agreement There shall be no liability or obligation hereunder on the part of Seller or Buyer or any of their respective directors, officers, employees, affiliates, controlling persons, agents or representatives, except that Seller or Buyer, as the case may be, may have liability to the other party if the basis of termination is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d)a willful, provided that, with respect to this clause (B), only if Buyer is in material breach by Seller or default Buyer, as the case may be, of its representations, warranties, covenants one or obligations under more of the provisions of this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree except that the liquidated damages obligations provided for in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;Sections 7.2(a), 7.2(b) and 10.1 hereof shall survive any such termination.

Appears in 1 contract

Samples: Stock Purchase Agreement (Nco Group Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated and the abandonment of the transactions contemplated hereby and by either or both of Buyer or Sellers the Transition Agreement pursuant to Section 12.110.1 hereof, prompt written notice thereof shall forthwith be given by the party so terminating to the other party to this Agreement, and this Agreement shall terminate and the transactions contemplated hereby and thereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default Seller or breach of its representations, warranties, covenants or obligations under this AgreementBuyer. If this Agreement is terminated as provided hereinpursuant to Section 10.1 hereof: (ia) Except as set forth in Section 12.2(bBuyer shall return all documents, work papers and other materials (and all copies thereof) below, none of obtained from Seller or the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) Company or any of the Division Entities or their respective Related Parties pursuant to this Agreement with respect to which termination has occurredemployees, except for the obligations of Sellers and Buyer (but not including Sellers’ agents or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions representatives relating to the transactions contemplated hereby as and by the Ancillary Agreements, whether so obtained before or after the execution hereof, to which termination has occurred the party furnishing the same, and all confidential information received by Buyer with respect to the Division shall be treated in accordance with Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section; (b) At the option of Seller, all Filings, applications and other submissions made pursuant to Sections 5.3, 5.4 and 5.5 hereof shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; (b) (ic) If this Agreement is terminated: terminated and the transactions contemplated hereby are abandoned as described in this Section 10.2, this Agreement shall become null and void and of no further force or effect, except for the obligations provided for in Sections 5.6, 10.2, 12.3, 12.10 and 12.11 hereof, the confidentiality provision contained in Section 5.2(b) hereof and the Confidentiality Agreement referred to in such Section shall survive any such termination of this Agreement without limitation; and (Ad) by Sellers pursuant Such termination shall not be deemed to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material release and shall not relieve either party hereto from any liability for any willful breach or default violation by such party of any of its representations, warranties, covenants or obligations under agreements contained in this AgreementAgreement arising prior to such termination, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount except as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;10.2(c) or 10.3.

Appears in 1 contract

Samples: Stock Purchase Agreement (Healthsouth Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.17.1, prompt written notice thereof shall forthwith be given to the other party parties and this Agreement (other than Section 6.6 and as provided in paragraph (b) below) shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreementparties. If this Agreement is terminated as provided herein: (ia) Except as All information received by Buyer with respect to the Business, the MRI Group, Seller Parent or any of their Affiliates shall be held confidential. All copies of such information in Buyer's possession or in the possession of any of its representatives shall be returned to Seller Parent or destroyed by Buyer. Buyer shall comply with the provisions set forth in the Confidentiality Agreement dated June 6, 1996, between Seller and Xxxxxxx X. Xxxxxxx. (b) Any termination pursuant to subparagraph (b), (d) or (e) of Section 12.2(b) below7.1 shall not be deemed a waiver of any rights or remedies otherwise available under this Agreement, none by operation of the parties law or otherwise; provided, however, that in any action by a party hereto nor against any other party for specific performance or damages or to assert or enforce any of their respective partnersits rights or remedies hereunder, directorsno shareholder (other than Seller Parent in its capacity as a party), officersdirector, managersofficer, members, shareholders, owners, employers, agents, representatives representative or Affiliates (each, a “Related Party”) agent of such other party shall have any liability or further obligation to in connection therewith; (c) Concurrently with the other party (other than to the extent execution and delivery of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement, Buyer and/or PRIACQ has delivered to Seller an irrevocable letter of credit issued by Creditanstalt - Bankverein in the amount of $250,000. Upon the Closing or if the Closing shall not have occurred because of (i) the failure of the MRI Group to receive all required liquor licenses, (ii) Buyer having rightfully and unilaterally terminated this Agreement pursuant to Section 7.1(b) or any (d) hereof or (iii) a termination of their respective Related Parties this Agreement pursuant to Section 7.1(a) or (f) hereof, such letter of credit shall be returned to Buyer or PRIACQ, as appropriate. If the Closing does not occur as a result of the unilateral and rightful termination of this Agreement with respect by Seller or Seller Parent pursuant to which termination Section 7.1(b) (except in the event the MRI Group has occurrednot received all required liquor licenses by March 30, except for 1997) or (e) hereof, Seller shall be entitled to draw against the obligations full amount of Sellers such letter of credit as liquidated damages and Buyer not as a penalty (but not including Sellers’ the parties acknowledging that actual damages may be difficult or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Brokerimpossible to quantify), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iid) All filings, applications and other submissions relating made pursuant to Section 6.3 or prior to the transactions contemplated hereby as to which termination has occurred execution of this Agreement in contemplation thereof shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person person to which made.; and (be) (i) If Any termination of this Agreement is terminated: (A) by Sellers pursuant shall also act as and be deemed to Section 12.1(c); or (B) by Sellers pursuant be a termination of the PRI Agreement, and a termination of the PRI Agreement shall be deemed to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default be a termination of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Stock Purchase Agreement (Mortons Restaurant Group Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.17.1 hereof, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Parties, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 7.1 hereof: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed, and all confidential information received by any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation Party with respect to the other party (other than to Parties shall be treated in accordance with the extent of joint Confidentiality Agreement and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ BrokerSection 5.2(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and; (iib) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of Seller, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bc) there shall be no liability or obligation hereunder on the part of Seller, Buyer or any of their respective directors, officers, employees, Affiliates, agents or representatives, except that (i) If if the basis of termination is a willful, material breach by Seller or Buyer, as the case may be, of one or more of the provisions of this Agreement is terminated: (A) by Sellers pursuant including the failure of Buyer to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(dconsummate the transactions contemplated hereunder), provided that, with respect the breaching Party shall be liable to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receivenon-breaching Party, and shall be paid, (ii) the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for in this Section are intended 7.2 and Sections 5.5 (Public Announcements), 10.1 (Fees and Expenses), 10.2 (Notices), 10.3 (Severability), 10.7 (Dispute Resolution), 10.9 (Governing Law) and 10.10 (Consent to limit Jurisdiction and Service of Process) hereof and in the claims that the Piedmont Companies may have against Buyer;Confidentiality Agreement shall survive any such termination.

Appears in 1 contract

Samples: Stock Purchase Agreement (Nucor Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given to the other party and party, and, except as set forth in this Section 8.2, this Agreement shall terminate and be void and have no effect and the transactions contemplated hereby shall be abandoned without further action by abandoned; provided that (x) the termination of this Agreement shall not relieve DuPont from liability for any Intentional Breach of the parties hereto, but this Agreement and (y) subject to and without limiting any Section 8.2(d) (including the limitation of the rights of the parties liability set forth therein) in the case of Buyer, the termination of this Agreement if under circumstances in which the Reverse Termination Fee is not payable pursuant to Section 8.2(b) shall not relieve Buyer from liability for damages incurred by DuPont or its Subsidiaries as a party is in default or breach result of its representations, warranties, covenants or obligations under any Intentional Breach of this AgreementAgreement by Buyer. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) below, none of the parties each party hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation)will destroy, and 13.2 will direct its agents (Governmental Filing Fees)including attorneys and accountants) to destroy, 13.3 (Expenses)all documents, Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications work papers and other submissions material of each party hereto relating to the transactions contemplated hereby as (other than any documents, work papers and other material relating to which termination has occurred shallany payments pursuant to this Section 8.2(a), Section 8.2(b) or Section 8.2(d)), whether obtained before or after the execution hereof; (ii) all Information received by Buyer with respect to the extent practicablebusiness, be withdrawn from operations, Assets or financial condition of DuPont or its Subsidiaries or the Governmental Authority or other Person Joint Ventures shall remain subject to which madethe Confidentiality Agreement; (iii) notwithstanding the termination hereof, the Confidentiality Agreement, the Limited Guarantees and the following Sections of this Agreement shall remain in full force and effect: (A) Sections 3.16 and 4.4 relating to brokers, (B) the penultimate sentence of Section 5.2 relating to confidentiality matters, (C) the expense reimbursement and indemnification obligations of Buyer in Section 5.21(d), (D) Section 5.21(e), (E) Section 9.12 relating to certain expenses, (F) Section 8.1 and this Section 8.2 and (G) Article IX. (b) In the event DuPont shall terminate this Agreement in accordance with Section 8.1(e) or Section 8.1(f), Buyer shall pay, or cause to be paid, to DuPont an amount (the “Reverse Termination Fee”) equal to $330,750,000 by wire transfer of immediately available funds not later than the second (2nd) Business Day following such termination, it being understood that in no event shall the Reverse Termination Fee be payable on more than one occasion, whether by Buyer or the Guarantors under the Limited Guarantees. The parties agree that, in the circumstances in which the Reverse Termination Fee is payable, the Reverse Termination Fee is liquidated damages and not a penalty, and the payment of the Reverse Termination Fee in such circumstances is supported by due and sufficient consideration. (c) The parties acknowledge that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter into this Agreement; accordingly, if either party fails to promptly pay the amount due pursuant to Section 8.2(b) or as a result of its Intentional Breach, and, in order to obtain such payment, the other party commences a suit that results in a judgment against the first party, such first party shall pay to the other party its reasonable out-of-pocket costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on such amount or portion thereof at a rate per annum equal to 8% for the period from the date such payment was required to be made through the date of payment. (d) Subject to DuPont’s right to seek specific performance pursuant to Section 9.7 and any order pursuant thereto, (i) If in any circumstance in which DuPont is permitted to terminate this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); 8.1(e) or (BSection 8.1(f) by Sellers and receive the Reverse Termination Fee pursuant to Section 12.1(d8.2(b), provided that, with respect DuPont’s termination of this Agreement pursuant to this clause such Sections and receipt of the Reverse Termination Fee pursuant to Section 8.2(b) and any payments pursuant to Buyer’s expense reimbursement and indemnification obligations set forth in Section 5.21(d) and Section 5.21(e) (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, such reimbursement and shall be paidindemnification obligations, the Escrow Amount as liquidated damages, and such liquidated damages “Buyer Financing Cooperation Payment Obligations”) shall be the Piedmont Companies’ sole and exclusive remedy of DuPont and shall be its Affiliates against (A) Buyer, (B) the Guarantors under the Limited Guarantees, (C) the Financing Source Parties and (D) any of their respective, direct or indirect, former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates, employees, agents, other Representatives or assignees (such Persons referenced in lieu clauses (A) through (D), collectively the “Buyer Related Parties”) for any Loss suffered as a result of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of any representation, warranty, covenant or default under agreement in this Agreement, the difficulty of proof of losstransactions contemplated hereby, the inconvenience and infeasibility of otherwise obtaining an adequate remedyLimited Guarantees or the Financing Commitments, and the value upon such termination by DuPont and receipt of the Reverse Termination Fee and the Buyer Financing Cooperation Payment Obligations, none of the Buyer Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions to be consummated hereunder. The parties agree contemplated hereby, the Limited Guarantees or the Financing Commitments (except that the liquidated applicable Buyer Related Parties shall remain obligated for, and DuPont and its Subsidiaries may be entitled to remedies with respect to, any breach of the Confidentiality Agreement and any reimbursement obligations of Buyer pursuant to Section 8.2(c)), whether in equity or at law, in contract, in tort or otherwise, and (ii) in connection with any damages provided suffered as a result of any Intentional Breach of this Agreement by Buyer other than in a circumstance in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b), DuPont agrees that the maximum aggregate Liability of Buyer shall be limited to the amount of such damages up to an amount equal to the sum of the Reverse Termination Fee, the Buyer Financing Cooperation Payment Obligations and any amounts described in Section 8.2(c), and in no event shall DuPont be entitled to seek or obtain any recovery or judgment in excess of such amount. In no event shall DuPont be entitled to seek or obtain any recovery or judgment in excess of the sum of the Reverse Termination Fee, the Buyer Financing Cooperation Payment Obligations and any amounts described in Section 8.2(c) against any of the Buyer Related Parties or any of their respective assets, and in no event shall DuPont be entitled to seek or obtain any other damages of any kind against any Buyer Related Party (other than the Buyer and the Guarantors for damages suffered as a result of any Intentional Breach of this Agreement by Buyer other than in a circumstance in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b), which shall be subject to the limitations set forth in this Section are intended 8.2(d)), including consequential, special, indirect or punitive damages, for or with respect to, this Agreement or the Limited Guarantees or the transactions contemplated hereby and thereby (including, any breach by Buyer), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure; provided, however, that this Section 8.2(d) shall not limit the right of the parties hereto to seek specific performance of this Agreement pursuant to, and subject to the limitations in, Section 9.7 prior to the termination of this Agreement; and provided, further, in no event will DuPont be entitled to both the payment of (x) the Reverse Termination Fee and (y) the grant of specific performance pursuant to, and subject to the limitations in, Section 9.7, which grant results in the consummation of the Closing as contemplated by this Agreement. In light of the difficulty of accurately determining actual damages with respect to the foregoing, upon any such termination of this Agreement, the payment of the Reverse Termination Fee (plus the Buyer Financing Cooperation Payment Obligations and, in the case the Reverse Termination Fee is not timely paid, the amounts described in Section 8.2(c)), which together constitute a reasonable estimate of the monetary damages that will be suffered by DuPont by reason of breach or termination of this Agreement or any of the Limited Guarantees in circumstances in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b), shall be in full and complete satisfaction of any and all monetary damages of DuPont arising out of or relating to this Agreement and the Limited Guarantees, the transactions contemplated hereby and thereby (including, any breach by Buyer), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement, and any claims or actions under applicable Law arising out of any such breach, termination or failure, in each case, in circumstances in which DuPont is entitled to receive the Reverse Termination Fee pursuant to Section 8.2(b); provided, however, this Section 8.2 shall not limit the right of the parties hereto to seek specific performance pursuant to, and subject to the limitations in, Section 9.7 prior to any valid termination of this Agreement. Notwithstanding anything herein to the contrary, DuPont and its Affiliates hereby waive any and all rights and claims against any Buyer Related Party (other than Buyer and the Guarantors in connection with the Limited Guarantees) in connection with this Agreement or the Debt Commitment Letters, whether at Law or in equity, in contract, in tort or otherwise; provided that DuPont shall be entitled to seek specific performance to the Piedmont Companies may have against Buyer;extent set forth in, and subject to the terms and limitations set forth in, Section 9.7, prior to any valid termination of this Agreement.

Appears in 1 contract

Samples: Purchase Agreement (Axalta Coating Systems Ltd.)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated and abandonment of the transactions contemplated hereby by either any or both all of Buyer or Sellers the parties pursuant to Section 12.110.1, prompt written notice thereof shall forthwith be given to the other party parties and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(b) below, none None of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, ownerspartners, employersemployees, agents, representatives agents or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the any other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties its partners, directors, officers, shareholders, employees, agents or Affiliates pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker10.2(b), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous10.2(d) and this Article 12; and11.1 hereof; (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made; and (iii) Assignee shall return any information received by Assignee from Assignor. (b) Notwithstanding anything to the contrary contained in this Agreement, if any Assignor is in breach of its obligations under this Agreement prior to or on the date of termination of this Agreement, then and in that event, the Assignee shall have the right to seek all remedies available to it as provided hereunder or at law or equity, including the remedy of specific performance as provided in Section 11.9. (ic) If Except as specified in the following sentence, Assignors shall return the Deposit and all Deemed Interest to Assignee (without defense or setoff) within one (1) business day of termination of this Agreement in accordance with this Section 10.1. Notwithstanding anything to the contrary contained herein, if this Agreement is terminated: terminated by an Assignor solely as a result of a material breach or default of this Agreement by Assignee, such Assignor shall be entitled to retain the Deposit and Deemed Interest, as the exclusive remedy of Assignors with respect to any such breach or default (Athe amount of which the parties agree is a reasonable estimate of the damages that will be suffered by Assignors as a result of Assignee's breach or default and does not constitute a penalty, the parties hereby acknowledging the inconvenience and non-feasibility of otherwise obtaining an adequate remedy). (d) Each Assignor agrees that it shall not assign, amend, sublet or terminate any or all of the Leases (including, without limitation, in connection with a sale of any Assignor, whether by Sellers means of asset sale, stock sale, merger or consolidation) prior to October 8, 2001 if this Agreement is terminated pursuant to Section 12.1(c)10.1 hereof; or (B) by Sellers pursuant to Section 12.1(d)provided, provided thathowever, with respect to this that the prohibition set forth in the immediately preceding clause (B), shall apply only if Buyer at the time of termination of this Agreement any Assignor is in material breach or default of its representations, warranties, covenants or obligations agreements under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount Agreement or this Agreement is terminated as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu a result of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s a breach of or default under this Agreementby any Assignor of its representations, the difficulty of proof of losswarranties, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated covenants or agreements hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Master Agreement (Bobby Allison Wireless Corp)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer Purchaser or Sellers USRealty pursuant to Section 12.17.1, prompt written notice thereof shall forthwith be given by the terminating party or parties to the other party or parties hereto, and this Agreement shall thereupon terminate and become void and have no effect, and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject except that the provisions of Section 7.2(b) and Section 8.6 shall survive the termination of this Agreement; PROVIDED, HOWEVER, that such termination shall not relieve any party hereto of any liability for any willful breach of this Agreement (other than a breach of a representation, as to and without limiting any which no party shall be liable hereunder). (b) In the event that this Agreement is terminated pursuant to Section 7.1(c): (i) by Purchaser, if the failure of the rights Purchase and Sale Closing to occur by the Drop Dead Date shall be due to the failure of USRealty to perform or observe in all material respects its covenants and agreements set forth herein or (ii) by USRealty, if the failure of the parties Purchase and Sale Closing to occur by the Drop Dead Date shall be due to the failure of SCGI or Purchaser to perform or observe in all material respects their covenants and agreements set forth herein, the non-terminating party shall pay or cause to be paid to the terminating party, in this Agreement if a party is in default or breach of its representationssame day funds, warrantiessuch terminating party's Expenses, covenants or obligations under this Agreementupon demand. If this Agreement is terminated by any party on or after the Drop Dead Date and as provided herein: of such date all conditions to the parties' obligations set forth in Article VI, other than (iA) Except as the condition set forth in Section 12.2(b6.2(b), (B) below, none the delivery at the Purchase and Sale Closing of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”certificates referenced in Section 6.2(a) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation6.3(a), and 13.2 (Governmental Filing FeesC) any condition which has not been or cannot be satisfied as a result of the failure of SCGI or Purchaser to perform or observe in all material respects their covenants and agreements set forth herein, shall have been satisfied or waived, SCGI shall pay or cause to be paid to USRealty, in same day funds, USRealty's Expenses upon demand. For purposes of this Section 7.2(b), 13.3 "EX- PENSES" of a party means the documented out-of-pocket fees and expenses incurred or paid by or on behalf of USRealty or Holdings, in the case of Expenses of USRealty, or Purchaser or SCGI, in the case of Expenses of Purchaser, in connection with the Equity Purchase or the other transactions contemplated by this Agreement (Expensesincluding fees and expenses of counsel, commercial banks, investment banking firms and accountants), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating but in any event not to the transactions contemplated hereby as to which termination has occurred shall, to the extent practicable, be withdrawn from the Governmental Authority or other Person to which madeexceed US$2,100,000. (b) (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;

Appears in 1 contract

Samples: Transaction Agreement (Security Capital Group Inc/)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated by either or both of Buyer or Sellers pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given to the other party and party, and, except as set forth in this Section 8.2, this Agreement shall terminate and be void and have no effect and the transactions contemplated hereby shall be abandoned without further action by and there shall be no Liability or obligation on the part of any party hereunder. For the avoidance of doubt, subject to the provisions of Section 9.7, prior to the termination of this Agreement, each party shall be entitled to seek specific performance of the parties hereto, but subject to and without limiting any obligations of the rights of the parties set forth in other party under this Agreement if a party is in default or breach the event of its representations, warranties, covenants or obligations under this Agreementan Intentional Breach. If this Agreement is terminated as provided herein: (i) Except as set forth in Section 12.2(beach party hereto will return or destroy, at the recipient party’s option, and will cause its agents (including attorneys and accountants) belowto return or destroy, none all documents, work papers and other material of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions hereto relating to the transactions contemplated hereby as to which termination has occurred shallhereby, whether obtained before or after the execution hereof; (ii) all Information received by Buyer with respect to the extent practicablebusiness, be withdrawn from operations, Assets or financial condition of SEE or its Subsidiaries shall remain subject to the Governmental Authority or other Person Confidentiality Agreement in accordance with the terms thereof; (iii) notwithstanding the termination hereof, the Confidentiality Agreement, the Limited Guaranty, the following sections of this Agreement shall remain in full force and effect: (A) Section 3.17 and Section 4.9 relating to which madebrokers, (B) the second and third sentences of Section 5.2 relating to confidentiality matters, (C) Section 8.1 and this Section 8.2, and (E) Section 9.1, Section 9.5, Section 9.6, Section 9.7 (but only as it relates to another surviving provision), Section 9.8, Section 9.9, Section 9.12, Section 9.14, and Section 9.16. (b) Notwithstanding Section 8.2(a) or anything else in this Agreement, in the event that this Agreement is terminated (i) If this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c8.1(e) or pursuant to Section 8.1(f); or (Bii) by Sellers pursuant to Section 12.1(d8.1(b) at a time at which SEE would have been entitled to terminate pursuant to Section 8.1(e), provided that, with respect then Buyer shall pay to this clause SEE the Reverse Termination Fee by wire transfer of immediately available funds within two (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;2) Business Days

Appears in 1 contract

Samples: Purchase Agreement (Sealed Air Corp/De)

Procedure and Effect of Termination. (a) If In the event of termination of this Agreement is terminated and abandonment of the transactions contemplated hereby by either or both of Buyer or Sellers the parties pursuant to Section 12.19.1, prompt written notice thereof shall forthwith be given by the terminating party to the other party parties and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned abandoned, without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is terminated as provided herein:: lxiv (ia) Except as set forth said termination shall be the sole remedy of the parties hereto with respect to breaches of any covenant, representation or warranty contained in Section 12.2(b) below, this Agreement and none of the parties hereto nor any of their respective partnerstrustees, directors, officersofficers or Affiliates, managersas the case may be, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) parties or any of their respective Related Parties trustees, directors, officers or Affiliates, as the case may be, pursuant to this Agreement with respect to which termination has occurredAgreement, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) parties hereto in each case as stated in this Section 9.2, Section 9.3, Section 10.15 and in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation)7.2(b) and 7.3, and 13.2 (Governmental Filing Fees)upon a willful breach by a party, 13.3 (Expenses)in which case the non-breaching party shall have all rights and remedies existing at law or in equity; provided, Article 14 (Miscellaneous) and however, the Seller Parties shall not be responsible for liability for any misrepresentation or breach of any warranty or covenant by any Seller Party contained in this Article 12; andAgreement prior to the time of such termination; (iib) All all filings, applications and other submissions relating made pursuant to the transactions contemplated hereby as to which termination has occurred shallthis Agreement, to the extent practicable, shall be withdrawn from the Governmental Authority agency or other Person to which they were made.; and (bc) (i) If this Agreement is terminated: (A) by Sellers pursuant all Confidential Information from the Seller Parties shall be returned to Section 12.1(c); the Seller Parties or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receivedestroyed, and all Confidential Information from the Buyers shall be paid, returned to the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law Buyers or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree destroyed (provided that the liquidated damages provided in this Section are intended party doing such destruction shall deliver a written certification of such destruction to limit the claims that the Piedmont Companies may have against Buyer;other party).

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Bel Fuse Inc /Nj)

Procedure and Effect of Termination. (a) If In the event of the termination and abandonment of this Agreement is terminated by either Sellers' Representative or both of Buyer or Sellers Purchaser pursuant to Section 12.18.1 hereof, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and parties. If the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this Agreement. If this Agreement is are terminated as provided herein: (ia) Except as set forth in Section 12.2(b) belowEach party will redeliver all documents, none work papers and other material of the parties hereto nor any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shallhereby, whether so obtained before or after the execution hereof, to the extent practicable, be withdrawn from party furnishing the Governmental Authority or other Person to which made.same; (b) All confidential information received by Purchaser with respect to the business of the Company and the Subsidiary shall be treated in accordance with the provisions of the Confidentiality Agreement, dated as of ______ 19__, between Purchaser and the Company, as well as the provisions of Section 8 of that certain letter agreement dated October 25, 1996, among Purchaser, Xxxxxx and Xxxxxxx Xxxxxxxx on behalf of the Shareholders other than Xxxxxx (collectively, the "Confidentiality Agreement"), which shall survive the termination of this Agreement in accordance with its terms; and (c) No party to this Agreement will have any liability under this Agreement to the other except (i) If as stated in subparagraphs (a) and (b) of this Section 8.2 and (ii) for any willful breach of any provision of this Agreement is terminated: and (Aiii) by Sellers pursuant to Section 12.1(c); or (B) by Sellers pursuant to Section 12.1(d), provided that, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;Confidentiality Agreement.

Appears in 1 contract

Samples: Recapitalization and Stock Purchase Agreement (Color Spot Nurseries Inc)

Procedure and Effect of Termination. (a) If In the event of the termination of this Agreement is terminated by either or both and the abandonment of Buyer or Sellers the transactions contemplated hereby pursuant to Section 12.17.1 hereof, prompt written notice thereof shall forthwith be given by the Party so terminating to the other party Party, and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or obligations under this AgreementParty. If this Agreement is terminated as provided hereinpursuant to Section 7.1 hereof: (ia) Except as set forth in Section 12.2(b) beloweach Party shall redeliver all documents, none work papers and other materials of the parties hereto nor other Party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the Party furnishing the same or, upon prior written notice to such Party, shall destroy all such documents, work papers and other materials and deliver notice to the Party seeking destruction of such documents that such destruction has been completed; (b) notwithstanding any provision of the Confidentiality Agreement to the contrary, each Party shall not disclose, and shall keep strictly confidential, all Confidential Information about the other Party at all times and forever following such termination and shall not use any of their respective partners, directors, officers, managers, members, shareholders, owners, employers, agents, representatives such Confidential Information for any reason or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurred, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; andpurpose whatsoever; (iic) All all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred made pursuant hereto shall, at the option of the party who is responsible for such filings, applications and other submissions, and to the extent practicable, be withdrawn from the Governmental Authority agency or other Person to which made.; and (bd) there shall be no liability or obligation hereunder on the part of Seller, Buyer or any of their respective directors, officers, employees, Affiliates, Controlling Persons, agents or representatives, except that: (i) If nothing in this Agreement is terminated: (A) by Sellers pursuant to Section 12.1(c); shall relieve any Party from liability for fraud or (B) by Sellers pursuant to Section 12.1(d)willful misconduct in connection with, provided thator any willful breach of, with respect to this clause (B), only if Buyer is in material breach or default of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have ; and (ii) the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages obligations provided for in this Section are intended to limit 7.2 and Sections 5.2(b), 5.6, 5.10, 9.1, 9.7, 9.8, 9.9 and 9.13 hereof and in the claims that the Piedmont Companies may have against Buyer;Confidentiality Agreement shall survive any such termination.

Appears in 1 contract

Samples: Asset Purchase Agreement (Edac Technologies Corp)

Procedure and Effect of Termination. (a) 8.2.1 Termination of this Agreement by either Buyer or Seller shall be by delivery of a Notice to the other Party. Such Notice shall state the termination provision in this Agreement that such terminating Party is claiming provides a basis for termination of this Agreement. Termination of this Agreement pursuant to the provisions of Section 8.1 shall be effective upon and as of the date of delivery of such Notice as determined pursuant to Section 9.2. 8.2.2 If a Party waives compliance with any of the conditions, obligations or covenants contained in this Agreement, the waiver will be without prejudice to any of its rights of termination in the event of non-fulfilment, non-observance or non-performance of any other condition, obligation or covenant in whole or in part. 8.2.3 If this Agreement is terminated by either or both terminated, the Parties are released from all of Buyer or Sellers pursuant to Section 12.1, prompt written notice thereof shall forthwith be given to the other party and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned without further action by any of the parties hereto, but subject to and without limiting any of the rights of the parties set forth in this Agreement if a party is in default or breach of its representations, warranties, covenants or their obligations under this Agreement. If , except that each Party’s obligations under Sections 5.2, 7.2, 8.2, 9.1, 9.2, 9.3, 9.5, 9.9, 9.10 and 9.11 will survive. 8.2.4 As soon as practicable following a termination of this Agreement is terminated as provided herein: for any reason, but in no event more than thirty (i30) Except as set forth in Section 12.2(b) belowdays after such termination, none of the parties hereto nor any of their respective partnersBuyer and Seller shall, directors, officers, managers, members, shareholders, owners, employers, agents, representatives or Affiliates (each, a “Related Party”) shall have any liability or further obligation to the other party (other than to the extent of joint and several liability among the Piedmont Companies as expressly set forth in this Agreement) or any of their respective Related Parties pursuant to this Agreement with respect to which termination has occurredpracticable, except for the obligations of Sellers and Buyer (but not including Sellers’ or Buyer’s Related Parties) as stated in Sections 4.18 (Sellers’ Broker), 5.6 (Buyer’s Broker), 7.3 (Confidentiality), 7.7 (Non-Solicitation), and 13.2 (Governmental Filing Fees), 13.3 (Expenses), Article 14 (Miscellaneous) and this Article 12; and (ii) All withdraw all filings, applications and other submissions relating to the transactions contemplated hereby as to which termination has occurred shallby this Agreement filed or submitted by or on behalf of such Party, to the extent practicable, be withdrawn from the any Governmental Authority or other Person to which madePerson. (b) (i) If 8.2.5 Notwithstanding Section 8.2.3, in the event of a termination of this Agreement is terminatedby Seller pursuant to Section 8.1.2 or Section 8.1.8(A), then Buyer and Seller shall, within two (2) Business Days after the date of such termination, deliver joint written instructions (“Joint Written Instructions”) to the Escrow Agent directing the Escrow Agent to deliver to Seller an amount equal to the Deposit plus any accrued investment interest thereon. Buyer acknowledges that the agreements contained in this Section 8.2.5 are an integral part of the Transactions, and that without these agreements, Seller would not have entered into this Agreement; accordingly, if Buyer fails to deliver such Joint Written Instructions or pay any amount due pursuant to this Section 8.2.5 and, in order to obtain the payment, Seller commences a Litigation which results in a judgment against Buyer for any payment set forth in this Section 8.2.5, Buyer shall pay Seller its costs and expenses (including attorneys’ fees and disbursements) in connection with such Litigation, together with interest on such payment at 3% per annum (for the avoidance of doubt, using the payment described in this sentence as the applicable payment) through the date such payment was actually received. 8.2.6 Notwithstanding Section 8.2.3 and subject to Section 8.2.5, in the event of a termination of this Agreement by Seller other than pursuant to Section 8.1.2 or Section 8.1.8(A), then Buyer and Seller shall, within two (2) Business Days after the date of such termination, deliver Joint Written Instructions to the Escrow Agent directing the Escrow Agent to deliver to Buyer an amount equal to the Deposit plus any accrued investment interest thereon (less any fees or expenses owing to the Escrow Agent). 8.2.7 In the event of termination of this Agreement pursuant to Section 8.1: (A) by Sellers pursuant Buyer shall return all documents and other material received from Seller relating to Section 12.1(c)Seller and its Affiliates, the Products, the Purchased Assets or the Transactions, whether so obtained before or after the execution hereof, to Seller; or and (B) all confidential information received by Sellers pursuant to Section 12.1(d), provided that, Buyer with respect to this clause (B)Seller and its Affiliates, only if Buyer is the Products, the Purchased Assets or the Transactions shall be treated in material breach or default accordance with the Confidentiality Agreement, and with the Confidentiality Agreement remaining in full force and effect in accordance with its terms, notwithstanding the termination of its representations, warranties, covenants or obligations under this Agreement, then Sellers shall have the right to receive, and shall be paid, the Escrow Amount as liquidated damages, and such liquidated damages shall be the Piedmont Companies’ sole and exclusive remedy and shall be in lieu of any other remedies at law or in equity to which the Piedmont Companies might otherwise be entitled. Buyer and the Piedmont Companies each acknowledges and agrees that such liquidated damages amount is reasonable in light of the anticipated harm which would be caused by Buyer’s breach of or default under this Agreement, the difficulty of proof of loss, the inconvenience and infeasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated hereunder. The parties agree that the liquidated damages provided in this Section are intended to limit the claims that the Piedmont Companies may have against Buyer;.

Appears in 1 contract

Samples: Asset Purchase Agreement (Clovis Oncology, Inc.)