Common use of Seller Termination Fee Clause in Contracts

Seller 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) would have been satisfied but for (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition (other than pursuant to clause (i) of the definition thereof) 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), Seller will by way of compensation, pay to Purchaser an amount equal to $100,000,000 (the “Seller Termination Fee”) by wire transfer (to an account designated by Purchaser) of immediately available funds (x) prior to or concurrently with such termination in the event of a termination by Seller or (y) no later than five Business Days following such termination in the event of a termination by Purchaser. In no event will Seller be required to pay the Seller Termination Fee other than in the instance described in this Section ‎9.3(a) and in no event will Seller be required to pay the Seller Termination Fee on more than one occasion. The Parties acknowledge that the Seller Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Purchaser and Parent 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 Purchaser receives the Seller Termination Fee pursuant to this Section ‎9.3(a), receipt of the Seller Termination Fee will be the sole and exclusive remedy of Purchaser, Parent and their respective Affiliates against Seller and its Affiliates and their respective 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 Seller 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.

Seller Termination Fee. In the event that (i) If Buyer terminates this Agreement is terminated pursuant to (Aa) Section ‎9.1(b)(i9.01(b)(i) at a time when only or (b) Section 9.01(b)(ii), and in the case of this clause (ii), all of the conditions to Seller's obligations to consummate the Closing under Section 7.01 or Section 7.03 have not been satisfied (other than those any such conditions that which by their nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if by the Closing Date were Date), and within twelve months of 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) would have been satisfied but for (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition (other than pursuant to clause (i) of the definition thereof) 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, Seller consummates a Seller Acquisition Proposal from an Interested Party, then the Seller shall pay, or cause to be paid, to Buyer a fee equal to the total of (i) any proceeds received by Seller (or its Affiliates) in calendar year 2014 or concurrently with the closing of a transaction related to a Seller Acquisition Proposal less $5,000,000 plus (ii) any deferred proceeds payable pursuant to the Seller Acquisition Proposal in excess of $10,000,000 (collectively, the "Termination Fee"), then, subject to Section ‎9.3(c), Seller will by way of compensation, pay to Purchaser an amount equal to $100,000,000 (the “Seller Termination Fee”) by wire transfer (of immediately available funds to an account designated by Purchaser) of immediately available funds (x) prior to or concurrently with such termination in the event of a termination by Seller or (y) no Buyer, not later than five three Business Days following after the consummation of such termination in transaction arising from such Seller Acquisition Proposal. Each of the event of a termination by Purchaser. In no event will Seller be required to pay Parties hereto acknowledges that the Seller Termination Fee other than in the instance described agreements contained in this Section ‎9.3(a) 9.02 are an integral part of the transactions contemplated by this Agreement and in no event will Seller be required to pay that the Seller Termination Fee on more than one occasion. The Parties acknowledge that the Seller Termination Fee will is not constitute a penalty penalty, but rather is liquidated damages, damages in a reasonable amount that will compensate Purchaser and Parent Buyer in the circumstances in which such Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this AgreementAgreement and on the expectation of the consummation of the transactions contemplated hereby, 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 Purchaser receives the Seller Termination Fee pursuant to this Section ‎9.3(a), receipt of the Seller Termination Fee will be the sole and exclusive remedy of Purchaser, Parent and their respective Affiliates against Seller and its Affiliates and their respective 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 Seller 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.

Seller 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 - 72 - 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) would have been satisfied but for (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition (other than pursuant to clause (i) of the definition thereof) 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), Seller will by way of compensation, pay to Purchaser an amount equal to $100,000,000 (the “Seller Termination Fee”) by wire transfer (to an account designated by Purchaser) of immediately available funds (x) prior to or concurrently with such termination in the event of a termination by Seller or (y) no later than five Business Days following such termination in the event of a termination by Purchaser. In no event will Seller be required to pay the Seller Termination Fee other than in the instance described in this Section ‎9.3(a) and in no event will Seller be required to pay the Seller Termination Fee on more than one occasion. The Parties acknowledge that the Seller Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Purchaser and Parent 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 Purchaser receives the Seller Termination Fee pursuant to this Section ‎9.3(a), receipt of the Seller Termination Fee will be the sole and exclusive remedy of Purchaser, Parent and their respective Affiliates against Seller and its Affiliates and their respective 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 Seller 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.. (b)