Purchaser Termination Fee. In the event that: (i) this Agreement is terminated pursuant to (A) Section 9.1(b)(i) at a time when only the conditions (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section 8.1(b) have not been satisfied, (B) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (C) Section 9.1(b)(iv); and (ii) the conditions in Section 8.1(a) and Section 8.1(b) failed to be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section 5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or cause to be paid, by way of compensation to Seller an amount equal to $100,000,000 (the “Regulatory Termination Fee”); provided, however, that, if this Agreement has been terminated in the circumstances set forth in the preceding clause (i) and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but - 73 - for (x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section 5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to $200,000,000 (the “Purchaser Termination Fee”). If the Regulatory Termination Fee or the Purchaser Termination Fee becomes due and payable in accordance with this Section 9.3(b), then such fee shall be paid in each case by wire transfer (to an account designated by Seller) of immediately available funds (I) prior to or concurrently with such termination in the event of a termination by Purchaser or (II) no later than five Business Days following such termination in the event of a termination by Seller. In no event will Parent be required to pay the Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section 9.3(b) and in no event will Parent be required to pay both the Purchaser Termination Fee and the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee are payable pursuant to this Section 9.3(b), then Seller shall only be entitled to receive, and Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, on more than one occasion. The Parties acknowledge that each of the Purchaser Termination Fee and the Regulatory Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Seller for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, which amount would otherwise be impossible to calculate with precision. Except in the case of Willful Breach or Actual Fraud, in any circumstance in which Seller receives the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, pursuant to this Section 9.3(b), receipt of such fee will be the sole and exclusive remedy of Seller and its Affiliates and their respective Representatives against Purchaser, Parent and their respective Affiliates and Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or in connection with the transactions contemplated hereby, and upon receipt of the Purchaser Termination Fee or the Regulatory Termination Fee, none of the foregoing Persons will have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, whether in equity or at law, in contract, in tort or otherwise.
Appears in 1 contract
Sources: Stock Purchase Agreement
Purchaser Termination Fee. In the event that: (i) this Agreement is terminated pursuant to (A) Section 9.1(b)(i) at a time when only the conditions (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section 8.1(b) have not been satisfied, (B) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (C) Section 9.1(b)(iv); and (ii) the conditions in Section 8.1(a) and Section 8.1(b) failed to be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section 5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or cause to be paid, by way of compensation to Seller an amount equal to $100,000,000 (the “Regulatory Termination Fee”); provided, however, that, if this Agreement has been terminated in the circumstances set forth in the preceding clause (i) and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but - 73 - for (x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section 5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to $200,000,000 (the “Purchaser Termination Fee”). If the Regulatory Termination Fee or the Purchaser Termination Fee becomes due and payable in accordance with this Section 9.3(b), then such fee shall be paid in each case by wire transfer (to an account designated by Seller) of immediately available funds (I) prior to or concurrently with such termination in the event of a termination by Purchaser or (II) no later than five Business Days following such termination in the event of a termination by Seller. In no event will Parent be required to pay the Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section 9.3(b) and in no event will Parent be required to pay both the Purchaser Termination Fee and the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee are payable pursuant to this Section 9.3(b), then Seller shall only be entitled to receive, and Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, on more than one occasion. The Parties acknowledge that each of the Purchaser Termination Fee and the Regulatory Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Seller for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, which amount would otherwise be impossible to calculate with precision. Except in the case of Willful Breach or Actual Fraud, in any circumstance in which Seller receives the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, pursuant to this Section 9.3(b), receipt of such fee will be the sole and exclusive remedy of Seller and its Affiliates and their respective Representatives against Purchaser, Parent and their respective Affiliates and Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or in connection with the transactions contemplated hereby, and upon receipt of the Purchaser Termination Fee or the Regulatory Termination Fee, none of the foregoing Persons will have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, whether in equity or at law, in contract, in tort or otherwise.for
Appears in 1 contract
Purchaser Termination Fee. (a) In the event that: (i) that this Agreement is terminated (i) by the Company pursuant to (A) Section 9.1(b)(i) at a time when only the conditions (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity7.01(d)(i) or Section 8.1(b) have not been satisfied, (B) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (C) Section 9.1(b)(iv); and (ii) the conditions in Section 8.1(a) and Section 8.1(b) failed to be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section 5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement7.01(d)(iii), then, subject to Section 9.3(c), Parent will then Purchaser shall pay, or cause to be paid, by way of compensation to Seller an amount equal to $100,000,000 (the “Regulatory Termination Fee”); provided, however, that, if this Agreement has been terminated in the circumstances set forth in the preceding clause (i) and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but - 73 - for (x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section 5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the Company a termination fee of this Agreement), then, subject to Section 9.3(c), Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to Twenty-Nine Million Dollars ($200,000,000 29,000,000) in cash (the “Purchaser Termination Fee”). If the Regulatory Termination Fee or the Purchaser Termination Fee becomes due and payable in accordance with this Section 9.3(b), then such fee shall ) to be paid in each case made by wire transfer (to an account designated by Seller) of immediately available funds within three (I3) prior to or concurrently with Business Days after such termination (it being understood that in the event of a termination by Purchaser or (II) no later than five Business Days following such termination in the event of a termination by Seller. In no event will Parent shall Purchaser be required to pay the Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section 9.3(b) and in no event will Parent be required to pay both the Purchaser Termination Fee and the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee are payable pursuant to this Section 9.3(b), then Seller shall only be entitled to receive, and Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, on more than one occasion. The Parties acknowledge that each ).
(b) Subject to the rights of the Company pursuant to Section 8.08, the Company’s right to receive (x) the Purchaser Termination Fee pursuant to Section 7.04(a), (y) any amounts owed pursuant to Section 7.04(d), and (z) any amounts owed pursuant to the Regulatory Termination Fee will not constitute a penalty but is liquidated damagesfinal two sentences of Section 5.13(e) (the amounts described in the preceding clauses (x), (y) and (z) being referred to herein collectively as the “Recoverable Amounts”), in a reasonable amount that will compensate Seller for each case from Purchaser in accordance with the efforts terms and resources expended and opportunities foregone while negotiating this Agreement and in reliance on conditions of this Agreement, which amount would otherwise be impossible to calculate with precision. Except in or from the case of Willful Breach or Actual Fraud, in any circumstance in which Seller receives the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, Guarantor pursuant to this Section 9.3(b)the Guaranty in accordance with the terms and conditions thereof, receipt of such fee will shall be the sole and exclusive remedy (whether at law, in equity, in Contract, in tort or otherwise) of Seller and its Affiliates the Company against (i) Purchaser, Merger Sub, or the Guarantor, (ii) any Rollover Investor, Preferred Investor, Lender or other Financing Source, including each party to the Commitment Letters, and their respective Representatives against PurchaserAffiliates, Parent Representatives, successors and their respective Affiliates assigns, and Representatives (iii) the former, current and future holders of any equity, partnership or limited liability company interest, controlling Persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees or successors of any Person named in clause (i), and any future holders of any equity, partnership or limited liability company interest, controlling Persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees or successors of any of the foregoing (the Persons described in clauses (i), (ii) and (iii), collectively, the “Purchaser Group”) for any liability, cost, expense, obligation, loss or damages suffered as a result of of, in connection with, or otherwise related to any breach of any representation, warranty, covenant or agreement in this Agreement or in connection with the failure of the transactions contemplated hereby, and upon receipt of the Purchaser Termination Fee by this Agreement to be consummated or the Regulatory Termination Fee, none of the foregoing Persons will have any further liability or obligation otherwise relating to or arising out of this Agreement or the transactions contemplated herebyby this Agreement; provided that neither this Section 7.04(b) nor Section 7.04(c) below shall limit the obligations of ▇▇▇▇▇ Traverse Management, LLC pursuant to the terms of the Confidentiality Agreement or any of the Company’s rights thereunder.
(c) Upon payment of the Recoverable Amounts (if and when due and payable pursuant to the terms of this Agreement), no Person shall have any rights or claims against the Purchaser Group under this Agreement, the Commitment Letters, the Guaranty or otherwise, whether in equity at law or at lawequity, in contract, contract in tort or otherwise, and the Purchaser Group shall not have any further liability relating to or arising out of this Agreement or any of the transactions contemplated by this Agreement (including the Financing), and the Company agrees to cause any action or proceeding pending in connection with this Agreement or any of the transactions contemplated by this Agreement by the Company against the Purchaser or any other member of the Purchaser Group to be dismissed with prejudice promptly, and in any event within two (2) Business Days thereafter. In no event shall the Company seek or permit to be sought any losses or damages from, or otherwise bring any action or proceeding against, the Purchaser Group in connection with this Agreement or any of the transactions contemplated by this Agreement, other than an action or proceeding to recover payment of the Recoverable Amounts from Purchaser or the Guarantor or for specific performance as set forth in Section 8.08, and for the avoidance of doubt, the Purchaser Group shall not have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the transactions contemplated by this Agreement other than the payment of the Recoverable Amounts (if and when due and payable pursuant to the terms of this Agreement). Nothing in this Section 7.04(c) shall in any way expand or be deemed or construed to expand the circumstances in which Purchaser or any other member of the Purchaser Group may be liable under this Agreement or any of the transactions contemplated by this Agreement (including the Financing). For the avoidance of doubt, while the Company may pursue both a grant of specific performance in accordance with Section 8.08 and the payment of the Recoverable Amounts, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance that results in a Closing and any money damages, including all or any portion of the Purchaser Termination Fee (together with any amounts owed pursuant to Section 7.04(d)).
(d) Each of the Company, Purchaser and Merger Sub acknowledges that the agreements contained in this Section 7.04 are an integral part of the transactions contemplated hereby, and that, without these agreements, the Company, Purchaser and Merger Sub would not enter into this Agreement. Accordingly, if Purchaser fails to pay, in a timely manner, any amount due pursuant to this Section 7.04, then (i) Purchaser shall reimburse the Company for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in the collection of such overdue amount, including in connection with any related Actions commenced, and (ii) Purchaser shall pay to the Company interest on such amount from and including the date payment of such amount was due, but excluding the date of actual payment, at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made.
Appears in 1 contract
Sources: Merger Agreement (RealD Inc.)
Purchaser Termination Fee. (a) In the event thatthat this Agreement is terminated by: (i) this Agreement is terminated the Sellers’ Representative pursuant to (A) Section 9.1(b)(i) at a time when only the conditions (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section 8.1(a10.01(d)(i) (but only if the applicable Legal Restraint relates and at such time Purchaser could not have terminated this Agreement pursuant to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental EntitySection 10.01(c)) or Section 8.1(b) have not been satisfied10.01(d)(ii), or (B) Section 9.1(b)(iii10.01(b)(i) (but only if and at such time the applicable Legal Restraint relates Sellers’ Representative could have terminated this Agreement pursuant to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval Section 10.01(d)(i) (other than the Required Regulatory Approvals) is required from and at such Governmental Entitytime Purchaser could not have terminated this Agreement pursuant to Section 10.01(c)) or (C) Section 9.1(b)(iv10.01(d)(ii)); and (ii) the conditions in Section 8.1(a) and Section 8.1(b) failed to be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section 5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement), then, subject pursuant to Section 9.3(c10.01(b)(i) (and at such time the Sellers’ Representative could have terminated this Agreement pursuant to Section 10.01(d)(i) (and at such time Purchaser could not have terminated this Agreement pursuant to Section 10.01(c), Parent will pay, ) or Section 10.01(d)(ii)); then Purchaser shall pay or cause to be paidpaid to (or as directed in writing by) the Sellers’ Representative, by way on behalf of compensation to Seller an amount Sellers, a termination fee equal to $100,000,000 (the “Regulatory Termination Fee”); provided, however, that, if this Agreement has been terminated 91,875,000 in the circumstances set forth in the preceding clause (i) and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but - 73 - for (x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section 5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to $200,000,000 cash (the “Purchaser Termination Fee”) by wire transfer of immediately available funds within five Business Day of such termination so long as the Sellers’ Representative has provided Purchaser with wire instructions for such payment (or, if not so provided, on the next Business Day following receipt of such wire instructions). If the Regulatory Termination Fee , it being understood that in no event shall Purchaser be required to pay or cause to be paid the Purchaser Termination Fee becomes due and payable on more than one occasion.
(b) Each of the parties acknowledges that the agreements contained in accordance with this Section 9.3(b10.03 are an integral part of the Transactions, and that without these agreements, the other parties hereto would not enter into this Agreement. Accordingly, if Purchaser fails to timely pay
(c) Subject in all respects to the Company’s and the Sellers’ Representative’s injunction, specific performance and equitable relief rights and related rights set forth in Section 12.09 and the reimbursement and indemnification obligations of Purchaser under Section 7.08(c), then such fee shall be paid in each case by wire transfer (to an account designated by Seller) of immediately available funds (I) prior to or concurrently with such termination in the event of a termination by Purchaser or (II) no later than five Business Days following such termination in the event of a termination by Seller. In no event will Parent be required to pay the Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section 9.3(b) and in no event will Parent be required to pay both the Purchaser Termination Fee and any Collection Costs are paid to or as directed by the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee Sellers’ Representative in circumstances for which such amounts are payable pursuant to this Section 9.3(b10.03(a) and Section 10.03(b) (as applicable), then Seller shall only be entitled to receive, and Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, on more than one occasion. The Parties acknowledge that each payment of the Purchaser Termination Fee and the Regulatory Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Seller for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, which amount would otherwise be impossible to calculate with precision. Except in the case of Willful Breach or Actual Fraud, in any circumstance in which Seller receives the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, pursuant to this Section 9.3(b), receipt of such fee will Collection Costs shall be the sole and exclusive monetary damages remedy of Seller Sellers, Blocker and the Company and its Affiliates and their respective Representatives subsidiaries against Purchaser, Parent and their respective the Purchaser Affiliates and Representatives or the Debt Financing Sources Related Parties for any loss suffered as a result of any the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of any representation, warranty, covenant or agreement in this Agreement or the Transactions or Ancillary Documents (including the termination thereof), including any representation made or alleged to have been made in connection with herewith or therewith, and any breach, termination or failure to perform (in each case, whether such breach, termination or failure to perform is intentional, unintentional or willful or otherwise and whether by or through attempted theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing of the transactions contemplated herebycorporate, partnership or limited liability company veil, unfairness, undercapitalization, or any other attempt to avoid or disregard the entity form, by or through a claim by or on behalf of any person, by the enforcement of any assessment or by any legal proceeding, claim, suit or other Action, by virtue of any applicable Law, or otherwise) under this Agreement or any other Ancillary Documents, and upon receipt payment of the Purchaser Termination Fee such amount none of Purchaser, Purchaser’s Affiliates and Representatives or the Regulatory Termination Fee, none of the foregoing Persons will Debt Financing Sources Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, whether in equity Transactions or at lawany Ancillary Documents, in contracteach case other than in the case of Fraud. Until such time as Purchaser pays the Purchaser Termination Fee and Collection Costs in accordance with this Section 10.03 to the extent payable thereunder, in tort nothing shall limit Sellers’ Representative’s right to seek, maintain or otherwiseobtain an Action for an injunction or injunctions, specific performance or other equitable relief pursuant to, and on the terms and conditions set forth in, Section 12.09 to the extent available thereunder at any time prior to the valid termination of this Agreement by the Sellers’ Representative pursuant to Section 10.01; provided that none of the Company Affiliates (including the Sellers’ Representative) or any of their respective Related Persons shall be entitled to both (i) receipt of the Purchaser Termination Fee and (ii) specific performance of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (White Mountains Insurance Group LTD)
Purchaser Termination Fee. In the event that: (i) of the termination of this Agreement is terminated pursuant to Section 8.01(b) or Section 8.01(e) (Aexcept, with respect to Section 8.01(e), solely to the extent related to an action of a Governmental Entity that is the subject matter of Section 7.01(a) or Section 9.1(b)(i7.01(c) at or a time when only Governmental Entity of competent jurisdiction in the United States), and on the date of such termination all conditions to this Agreement set forth in Article VII are satisfied (other than those conditions that by their nature terms are to be satisfied at the Closing, but each of which conditions would be is capable of being satisfied if at the Closing Date were Closing), or waived (where permissible pursuant to applicable Law), other than one or more of the date of such termination) conditions set forth in Section 8.1(a7.01(a), Section 7.01(b), Section 7.01(c) or Section 7.02(c) (but only if except, with respect to Section 7.01(b) and Section 7.02(c), solely to the applicable Legal Restraint relates extent related to a Required Regulatory Approval or is in connection with the assertion by an action of a Governmental Entity that an approval (other than is the Required Regulatory Approvals) is required from such Governmental Entitysubject matter of Section 7.01(a) or Section 8.1(b7.01(c) have not been satisfied, (B) Section 9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than of competent jurisdiction in the Required Regulatory Approvals) is required from United States), then concurrently with such Governmental Entity) or (C) Section 9.1(b)(iv); and (ii) the conditions in Section 8.1(a) and Section 8.1(b) failed to be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section 5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement), then, subject to Section 9.3(cAgreement (if terminated by Purchaser) or within five (5) Business Days following such termination of this Agreement (if terminated by Seller), Parent will pay, shall or shall cause another Parent Group Company to be paidpay to Seller, by way wire transfer of compensation to Seller immediately available funds, an amount equal to eight million dollars ($100,000,000 (the “Regulatory Termination Fee”); provided, however, that, if this Agreement has been terminated in the circumstances set forth in the preceding clause (i8,000,000) and the conditions in Section 8.1(a) and Section 8.1(b) would have been satisfied but - 73 - for (x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section 5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the termination of this Agreement), then, subject to Section 9.3(c), Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to $200,000,000 (the “Purchaser Termination Fee”). If the Regulatory Termination Fee or the Purchaser Termination Fee becomes due and payable in accordance with this Section 9.3(b), then such fee shall be paid in each case by wire transfer () to an account designated by SellerSeller in writing at least three (3) of immediately available funds (I) prior to or concurrently with Business Days before such termination payment; provided, that in the event that any such termination of this Agreement occurs after the Original Closing Date following the Purchaser’s delivery of a termination by Purchaser or (II) no later than five Business Days following such termination in the event of a termination by Seller. In no event will Parent be required Delay Notice pursuant to pay Section 2.01, the Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section 9.3(b) and in no event will Parent shall be required an amount equal to pay both the twelve million dollars ($12,000,000). The Purchaser Termination Fee and the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee are payable pursuant to this Section 9.3(b), then Seller shall only be entitled to receive, and Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall is not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, on more than one occasion. The Parties acknowledge that each of the Purchaser Termination Fee and the Regulatory Termination Fee will not constitute a penalty but is and shall constitute liquidated damages, in damages as a reasonable amount that will compensate the Seller in the circumstances upon which the Purchaser Termination Fee is payable for the efforts and resources expended and opportunities opportunity foregone while negotiating this Agreement and in reliance on this Agreementwith respect to the consummation of the transaction contemplated hereby, which amount would otherwise be impossible to calculate with precision. Except Each Parent Group Company acknowledges that the agreements contained in this Section 8.03 are an integral part of the case transactions contemplated by this Agreement and that without this Section 8.03 the Seller would not have entered into this Agreement. If Parent or, at the direction of Willful Breach Parent, Purchaser fails to promptly pay any amount due pursuant to this Section 8.03, Parent shall, or Actual Fraudshall cause the Purchaser to pay to the Seller all reasonable out-of-pocket fees, costs and expenses of enforcement (including reasonable attorneys’ fees as well as reasonable expenses incurred in connection with any circumstance in which Seller receives action initiated by the Seller), together with interest on the amount of the Purchaser Termination Fee or at the Regulatory prime lending rate as published in The Wall Street Journal, in effect on the date such payment is required to be made. Each of Seller Guarantor and Seller, on behalf of itself and each of their affiliates, hereby acknowledge and agree that Seller’s right to receive payment from Parent or, at the direction of Parent, Purchaser of the Purchaser Termination Fee, as Fee (under the case may be, pursuant to this Section 9.3(b), receipt of such fee will circumstances in which it is payable) shall be the sole and exclusive remedy of any member of Seller and its Affiliates and Group or any of their respective Representatives former, current or future officers, directors, partners, shareholders, managers, members or affiliates against PurchaserParent, Parent and Purchaser or any of their respective Affiliates and Representatives former, current or future officers, directors, employees, partners, equityholders, controlling persons, stockholders, managers, members, affiliates or assignees (collectively, “Purchaser Related Parties”) for any loss Loss suffered as a result of any breach the failure of any representation, warranty, covenant or agreement in this Agreement or in connection with the transactions contemplated hereby, including the Acquisition, to be consummated or for a breach or failure to perform hereunder or otherwise, and upon receipt payment of the Purchaser Termination Fee or the Regulatory Termination Feesuch amount (if entitled under this Section 8.03), none of the foregoing Persons will Purchaser Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, whether in equity or including the Acquisition. In no event shall Parent or, at lawthe direction of Parent, in contract, in tort or otherwisePurchaser be required to pay the Purchaser Termination Fee on more than one occasion.
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Sources: Stock Purchase Agreement (SMART Global Holdings, Inc.)