Common use of Regulatory Fees Clause in Contracts

Regulatory Fees. 9.3.1. If this Agreement is validly terminated by Seller or Buyer pursuant to Section 9.1.4 or Section 9.1.5, if at the time of such termination, all conditions to the Closing (other than those conditions that by their nature are to be satisfied at the Closing, but subject to such conditions being capable of being satisfied at the Closing) have been satisfied, other than the conditions to Closing set forth in Section 6.8, Section 6.9, Section 7.4 or Section 7.5, which, with respect to Section 6.9 and Section 7.5, shall not have been satisfied due to (x) the failure to receive any required antitrust, competition, foreign direct investment, trade, pre-merger notification or other regulatory clearance, from a Governmental Authority of competent jurisdiction or (y) any Action by a Governmental Authority of competent jurisdiction to prevent the Contemplated Transactions for antitrust, competition, foreign direct investment, trade, pre-merger notification or other regulatory reasons (each of the foregoing, a “Qualifying Termination”), then, (a) in the event Buyer did not extend the Expiration Date pursuant to Section 9.1.4, Buyer shall pay to Seller, by wire transfer of immediately available funds, a fee of $16,000,000 (the “Expiration Date Reverse Termination Fee”), or (b) in the event Buyer did extend the Expiration Date pursuant to Section 9.1.4 and (1) a Qualifying Termination occurs following such extension period, or (2) the Agreement is terminated pursuant to Section 9.1.6, Buyer shall pay to Seller, by wire transfer of immediately available funds, a fee of $32,400,000 (the “Regulatory Reverse Termination Fee”), in each case, such payment to be made no later than five (5) Business Days after the receipt by Xxxxx of Seller’s demand for payment thereof following a Qualifying Termination. 9.3.2. Notwithstanding anything to the contrary in this Agreement, following any termination of this Agreement in accordance with its terms, in the event that Buyer is required to pay either the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, pursuant to Section 9.3 and Buyer pays or causes to be paid, the full amount of either the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, (A) Seller’s receipt of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Seller and its Affiliates against Buyer, Parent, and any of their respective former, current and future Affiliates, Representatives, direct and indirect shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement, including the failure of the Closing to occur, and (B) upon the payment by Buyer of the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, in each case if and when required by this Section 9.3, no Buyer Released Party shall have any further liability or obligation relating to or arising out of this Agreement or the Contemplated Transactions to any Seller Releasing Party. 9.3.3. Each party acknowledges and agrees that (a) the agreements contained in this Section 9.3 are an integral part of this Agreement and that, without these agreements, the parties would not have entered into this Agreement, (b) under no circumstances will Seller or any of its Affiliates, indirectly and collectively, seek to recover, or be entitled to recover, any money damages or other damages of any kind, character or description in excess of the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, (c) in no event shall Buyer be required to pay both the Expiration Date Reverse Termination Fee and the Regulatory Reverse Termination Fee or shall Buyer be required to pay any of the Expiration Date Reverse Termination Fee and the Regulatory Reverse Termination Fee on more than one (1) occasion, and (d) in light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, in the circumstances in which such fee becomes payable, constitutes a reasonable estimate of the losses that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages and is not a penalty. Notwithstanding anything herein to the contrary, in no event shall Seller be permitted or entitled to receive both (x) a grant of specific performance to effectuate the Closing, on the one hand, and (y) payment of either the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, on the other hand.

Regulatory Fees. 9.3.1. If this Agreement is validly terminated by Seller or Buyer pursuant to Section 9.1.4 or Section 9.1.5, if at the time of such termination, all conditions to the Closing (other than those conditions that by their nature are to be satisfied at the Closing, but subject to such conditions being capable of being satisfied at the Closing) have been satisfied, other than the conditions to Closing set forth in Section 6.8, Section 6.9, Section 7.4 or Section 7.5, which, with respect to Section 6.9 and Section 7.5, shall not have been satisfied due to (x) the failure to receive any required antitrust, competition, foreign direct investment, trade, pre-merger notification or other regulatory clearance, from a Governmental Authority of competent jurisdiction or (y) any Action by a Governmental Authority of competent jurisdiction to prevent the Contemplated Transactions for antitrust, competition, foreign direct investment, trade, pre-merger notification or other regulatory reasons (each of the foregoing, a “Qualifying Termination”), then, (a) in the event Buyer did not extend the Expiration Date pursuant to Section 9.1.4, Buyer shall pay to Seller, by wire transfer of immediately available funds, a fee of $16,000,000 (the “Expiration Date Reverse Termination Fee”), or (b) in the event Buyer did extend the Expiration Date pursuant to Section 9.1.4 and (1) a Qualifying Termination occurs following such extension period, or (2) the Agreement is terminated pursuant to Section 9.1.6, Buyer shall pay to Seller, by wire transfer of immediately available funds, a fee of $32,400,000 (the “Regulatory Reverse Termination Fee”), in each case, such payment to be made no later than five (5) Business Days after the receipt by Xxxxx Buyer of Seller’s demand for payment thereof following a Qualifying Termination. 9.3.2. Notwithstanding anything to the contrary in this Agreement, following any termination of this Agreement in accordance with its terms, in the event that Buyer is required to pay either the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, pursuant to Section 9.3 and Buyer pays or causes to be paid, the full amount of either the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, (A) Seller’s receipt of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Seller and its Affiliates against Buyer, Parent, and any of their respective former, current and future Affiliates, Representatives, direct and indirect shareholders, members, managers, partners, successors and assigns for any losses, damages or liabilities suffered or incurred as a result of or under this Agreement or the transactions contemplated by this Agreement, including the failure of the Closing to occur, and (B) upon the payment by Buyer of the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, in each case if and when required by this Section 9.3, no Buyer Released Party shall have any further liability or obligation relating to or arising out of this Agreement or the Contemplated Transactions to any Seller Releasing Party. 9.3.3. Each party acknowledges and agrees that (a) the agreements contained in this Section 9.3 are an integral part of this Agreement and that, without these agreements, the parties would not have entered into this Agreement, (b) under no circumstances will Seller or any of its Affiliates, indirectly and collectively, seek to recover, or be entitled to recover, any money damages or other damages of any kind, character or description in excess of the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, as applicable, (c) in no event shall Buyer be required to pay both the Expiration Date Reverse Termination Fee and the Regulatory Reverse Termination Fee or shall Buyer be required to pay any of the Expiration Date Reverse Termination Fee and the Regulatory Reverse Termination Fee on more than one (1) occasion, and (d) in light of the difficulty of accurately determining actual losses or damages with respect to the foregoing, the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, in the circumstances in which such fee becomes payable, constitutes a reasonable estimate of the losses that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages and is not a penalty. Notwithstanding anything herein to the contrary, in no event shall Seller be permitted or entitled to receive both (x) a grant of specific performance to effectuate the Closing, on the one hand, and (y) payment of either the Expiration Date Reverse Termination Fee or the Regulatory Reverse Termination Fee, on the other hand.