Common use of Seller Termination Fee Clause in Contracts

Seller Termination Fee. (i) If this Agreement is terminated pursuant to: (A) Section 7.01(d) or Section 7.01(e); (B) Section 7.01(f)(ii) and (x) a vote of the stockholders of Seller contemplated by this Agreement at the Seller Special Meeting to obtain the Seller Stockholder Approval has not occurred and (y) a proposal with respect to an Alternative Transaction shall have been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of termination of this Agreement; (C) Section 7.01(b) or Section 7.01(f)(iii), and, in either case, a proposal with respect to an Alternative Transaction shall have been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of the Seller Special Meeting; or (D) Section 7.01(g); then (x) in the case of a termination contemplated by Section 7.02(b)(i)(A), Seller shall pay or cause to be paid to Buyer within two (2) Business Days following the termination of this Agreement, a fee, by wire transfer in immediately available funds to an account specified by Buyer, equal to $6,400,000 (the “Termination Fee”); (y) in the case of termination contemplated by Section 7.02(b)(i)(D), Seller shall pay or cause to be paid to Buyer the Termination Fee on the date of termination of this Agreement; and (z) in the case of a termination contemplated by Section 7.02(b)(i)(B) or Section 7.02(b)(i)(C), if Seller, within twelve (12) months after such termination either consummates an Alternative Transaction or enters into a definitive agreement to implement an Alternative (ii) If Buyer or Seller terminates this Agreement pursuant to Section 7.01(f)(iii), then Seller shall reimburse Buyer, or cause Buyer to be reimbursed, for Buyer’s reasonable, documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, provided, however, Seller’s aggregate liability under this Section 7.02(b)(ii) shall not exceed an amount equal to $500,000. (iii) In no event shall Seller be obligated to pay the Termination Fee on more than one occasion.

Seller Termination Fee. (i) If this Agreement is terminated pursuant to: (A) Section 7.01(d) or Section 7.01(e); (B) Section 7.01(f)(ii) and (x) a vote of the stockholders of Seller contemplated by this Agreement at the Seller Special Meeting to obtain the Seller Stockholder Approval has not occurred and (y) a proposal with respect to an Alternative Transaction shall have been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of termination of this Agreement; (C) Section 7.01(b) or Section 7.01(f)(iii), and, in either case, a proposal with respect to an Alternative Transaction shall have been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of the Seller Special Meeting; or (D) Section 7.01(g); then (x) in the case of a termination contemplated by Section 7.02(b)(i)(A), Seller shall pay or cause to be paid to Buyer within two (2) Business Days following the termination of this Agreement, a fee, by wire transfer in immediately available funds to an account specified by Buyer, equal to $6,400,000 (the “Termination Fee”); (y) in the case of termination contemplated by Section 7.02(b)(i)(D), Seller shall pay or cause to be paid to Buyer the Termination Fee on the date of termination of this Agreement; and (z) in the case of a termination contemplated by Section 7.02(b)(i)(B) or Section 7.02(b)(i)(C), if Seller, within twelve (12) months after such termination either consummates an Alternative Transaction or enters into a definitive agreement to implement an Alternative (ii) If Buyer or Seller terminates this Agreement pursuant to Section 7.01(f)(iii7.01(c)(i), the Seller shall pay to Parent a fee of $47,000,000 in cash (the “Seller Termination Fee”) (to an account designated in writing by Parent) concurrently with or prior to such termination; provided, however, that, if Parent has not provided wiring instructions in writing to the Seller for payment of the Seller Termination Fee at least two (2) Business Days prior to such termination, the Seller shall not be required to pay the Seller Termination Fee pursuant to this Section 7.03(a)(i) until two (2) Business Days after Parent has provided such wiring instructions in writing to the Seller. (ii) (1) If the Seller terminates this Agreement pursuant to Section 7.01(c)(iii) (and, at the time of such termination, the Seller would not be permitted to terminate this Agreement under Section 7.01(c)(ii)), disregarding any notice or cure period therein) or (2) if either Party terminates this Agreement pursuant to Section 7.01(b)(i) and, at the time of such termination pursuant to Section 7.01(b)(i), all of the conditions set forth in Article VI have been and continue to be satisfied or waived (other than Section 6.02(d) or those conditions that by their nature are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing), then the Seller shall pay to Parent, by wire transfer of immediately available funds to the account designated by Parent, the Seller Termination Fee (provided, however, that for purposes of this Section 7.03(a)(ii), the amount of the Seller Termination Fee shall be $42,000,000) in cash, not later than the later of (A) two (2) Business Days after such termination and (B) two (2) Business Days after Parent has provided wiring instructions in writing to the Seller for payment of the Seller Termination Fee. (iii) The Parties agree that, if the Seller fails to pay in a timely manner any amount due pursuant to Section 7.03(a)(i) or 7.03(a)(ii), and, in order to obtain such payment, Parent commences a Claim that results in a Judgment against the Seller for the applicable amount set forth in Section 7.03(a)(i) or 7.03(a)(ii), or any portion thereof, then (1) the Seller shall reimburse Buyer, or cause Buyer to be reimbursed, Parent for Buyer’s reasonable, documented all out-of-pocket costs and expenses (including disbursements and reasonable fees of counsel) incurred by Parent in connection with the collection under and enforcement of Sections 7.03(a)(i) or 7.03(a)(ii) and (2) the Seller shall pay to Parent interest on such amount awarded in such Judgment from and including the date payment of such amount was due to 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 plus 2%. (iv) If this Agreement is terminated under circumstances in which the Seller is obligated to pay the Seller Termination Fee under Section 7.03(a)(i) or 7.03(a)(ii), upon payment of the Seller Termination Fee (including the Seller Termination Fee in the amount specified in Section 7.03(a)(ii)), and any costs, expenses or interest owed under Section 7.03(a)(iii), the Seller shall have no further liability with respect to this Agreement or the transactions contemplated by this Agreement to the Purchaser Group or any of its Affiliates or Representatives, and payment of the Seller Termination Fee (including the Seller Termination Fee in the amount specified in Section 7.03(a)(ii)), and any costs, expenses or interest owed under Section 7.03(a)(iii), shall be the Purchaser Group’s sole and exclusive remedy for any Claims or Losses, including attorneys’ fees and disbursements, suffered or incurred by the Purchaser Group, the Purchaser Group’s Subsidiaries and any other Person in connection with this Agreement and or the transactions contemplated herebyby this Agreement or any matter forming the basis for such termination, provided, however, Seller’s aggregate liability under this Section 7.02(b)(ii) and the Purchaser Group shall not exceed an amount equal to $500,000. have, and expressly waives and relinquishes, any other right, remedy or recourse (iiiwhether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity). In no event shall the Seller be obligated required to pay the Seller Termination Fee on more than one (1) occasion, including after the Seller has paid the Seller Termination Fee in the amount specified in Section 7.03(a)(ii)).

Seller Termination Fee. (a) In the event that: (i) If (i) this Agreement is validly terminated by Buyer pursuant to: to Section 9.1(b)(iv) or Seller pursuant to Section 9.1(c)(iii), in each case, at a time when Buyer would have been entitled to terminate this Agreement pursuant to Section 9.1(b)(iii); or (ii) (A) Section 7.01(d) or Section 7.01(e); (B) Section 7.01(f)(ii) and (x) a vote of the stockholders of bona fide Seller contemplated by this Agreement at the Seller Special Meeting to obtain the Seller Stockholder Approval has not occurred and (y) a proposal with respect to an Alternative Transaction Takeover Proposal shall have been publicly made, publicly proposed or announced or otherwise publicly disclosed and not withdrawn communicated by a third party after the date of this Agreement and not withdrawn prior to the date of termination of time this Agreement; (C) Agreement is terminated by Buyer pursuant to Section 7.01(b9.1(b)(i), Section 9.1(b)(ii) or Section 7.01(f)(iii9.1(b)(iv) or Seller pursuant to Section 9.1(c)(iv), and, in either case, a proposal with respect to an Alternative Transaction shall have been publicly proposed or announced or otherwise publicly disclosed and not withdrawn (B) within twelve (12) months after the date of such termination, Seller enters into a definitive agreement to consummate a Seller Takeover Proposal; or (iii) this Agreement and prior is validly terminated by Buyer pursuant to the date of the Seller Special Meeting; or (D) Section 7.01(g9.1(b)(iii); then or (xiv) this Agreement is validly terminated by Seller pursuant to Section 9.1(c)(ii); then, in the case any such event under clauses (i) and (iii) of a termination contemplated by this Section 7.02(b)(i)(A9.3(a), Seller shall will pay or cause to be paid the Seller Termination Fee to Buyer or its designee by wire transfer of immediately available funds within (2) Business Days of the applicable termination, in the case of clause (ii), within two (2) Business Days following after entry into the termination of this Agreement, a fee, by wire transfer in immediately available funds to an account specified by Buyer, equal to $6,400,000 (the “Termination Fee”)definitive agreement described therein; (y) or in the case of termination contemplated clause (iv) of this Section 9.3(a), simultaneously with the applicable termination. As used herein, “Seller Termination Fee” will mean a cash amount equal to $5,075,000; provided, that the Seller Termination Fee shall be reduced by Expense Reimbursement actually made pursuant to Section 7.02(b)(i)(D9.3(b) in the event the Seller Termination Fee is owing pursuant to Section 9.3(a). (b) In the event that this Agreement is validly terminated by Buyer pursuant to Section 9.1(b)(ii) or Seller pursuant to Section 9.1(c)(iv), Seller shall pay to Buyer the Expenses up to $3,000,000 in the aggregate (the “Expense Reimbursement”). The Expense Reimbursement due under this Section 9.3(b) shall be paid (as a condition to the validity of such termination) no later than two (2) Business Days after receipt of documentation reasonably supporting such Expenses. (c) Each of the Parties acknowledges that the agreements contained in this Section 9.3 are an integral part of the transactions contemplated hereby, and that without these agreements, the other Parties would not enter into this Agreement. The Parties agree that the Seller Termination Fee shall not constitute a penalty but are liquidated damages, in a reasonable amount that will compensate the Party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Accordingly, if Seller fails to timely pay or cause to be paid any amount due pursuant to this Section 9.3, and, in order to obtain the payment, Buyer commences an Proceeding which results in a judgment against the Termination Fee Seller for the payment set forth in this Section 9.3, Seller will pay or cause to be paid Buyer’s reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Proceeding, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date of termination of this Agreement; and such payment was required to be made through the date such payment was actually received. (zd) Subject in all respects to Buyer’s rights set forth in Section 10.11, in the case of a termination contemplated by Section 7.02(b)(i)(B) or Section 7.02(b)(i)(C), if Seller, within twelve (12) months after event the Seller Termination Fee is paid to Buyer in circumstances for which such termination either consummates an Alternative Transaction or enters into a definitive agreement to implement an Alternative (ii) If Buyer or Seller terminates this Agreement fee is payable pursuant to Section 7.01(f)(iii9.3(a) or the Expense Reimbursement is paid to Buyer in circumstances for which such fee is payable pursuant to Section 9.3(b), then payment of the Seller shall reimburse Buyer, Termination Fee or cause the Expense Reimbursement (in situations where the Seller Termination Fee is not also payable) will be the sole and exclusive remedy of Buyer to be reimbursed, against Seller and its Controlled Affiliates (including the Acquired Entity) for Buyer’s reasonable, documented out-of-pocket expenses incurred in connection with this Agreement and any loss suffered as a result of the failure of the transactions contemplated herebyhereunder to be consummated or for a breach or failure to perform hereunder or otherwise, provided, however, Seller’s aggregate and upon payment of such amount neither Seller nor any of its Controlled Affiliates (including the Acquired Entity) will have any further liability under or obligation relating to or arising out of this Agreement or the transactions contemplated hereunder. While Buyer may pursue both a grant of specific performance in accordance with Section 7.02(b)(ii) shall not exceed an amount equal to $500,000. (iii) In no event shall 10.11 and the payment of the Seller be obligated to pay the Termination Fee on more than one occasionor the Expense Reimbursement under Section 9.3, under no circumstances will Buyer be permitted or entitled to receive both a grant of specific performance that results in a Closing and all or any portion of the Seller Termination Fee or Expense Reimbursement.

Seller Termination Fee. (i) If this Agreement is terminated pursuant to: : (A) Section 7.01(d) or Section 7.01(e); ; (B) Section 7.01(f)(ii) and (x) a vote of the stockholders of Seller contemplated by this Agreement at the Seller Special Meeting to obtain the Seller Stockholder Approval has not occurred and (y) a proposal with respect to an Alternative Transaction shall have been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of termination of this Agreement; ; (C) Section 7.01(b) or Section 7.01(f)(iii), and, in either case, a proposal with respect to an Alternative Transaction shall have been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of the Seller Special Meeting; or or (D) Section 7.01(g); then (x) in the case of a termination contemplated by Section 7.02(b)(i)(A), Seller shall pay or cause to be paid to Buyer within two (2) Business Days following the termination of this Americas 92425100 Agreement, a fee, by wire transfer in immediately available funds to an account specified by Buyer, equal to $6,400,000 (the “Termination Fee”); (y) in the case of termination contemplated by Section 7.02(b)(i)(D), Seller shall pay or cause to be paid to Buyer the Termination Fee on the date of termination of this Agreement; and (z) in the case of a termination contemplated by Section 7.02(b)(i)(B) or Section 7.02(b)(i)(C), if Seller, within twelve (12) months after such termination either consummates an Alternative Transaction or enters into a definitive agreement to implement an Alternative (ii) If Buyer or Seller terminates this Agreement pursuant to Section 7.01(f)(iii)Alternative Transaction, then Seller shall reimburse Buyer, or cause pay to Buyer to be reimbursed, for Buyer’s reasonable, documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, provided, however, Seller’s aggregate liability under this Section 7.02(b)(ii) shall not exceed an amount equal to $500,000. (iii) In no event shall Seller be obligated to pay the Termination Fee on more than one occasionsimultaneously with such consummation or entering into such definitive agreement, as the case may be. For purposes of clause (z) of this Section 7.02(b)(i), each reference to “15%” in the definition of “Alternative Transaction” shall be deemed to be a reference to “50%.”

Seller Termination Fee. (i) If Seller terminates this Agreement is terminated pursuant to: to Section 7.1(c)(iii), then Seller shall pay or cause to be paid to Buyer prior to or substantially concurrently with, and as a condition to such termination, an amount in cash equal to $25,000,000 (the “Seller Termination Fee”). (ii) If Buyer terminates this Agreement pursuant to Section 7.1(b)(iii), then Seller shall pay or cause to be paid to Buyer the Seller Termination Fee within three (3) Business Days after such termination. (iii) If (A) Section 7.01(d) Buyer or Section 7.01(e); (B) Section 7.01(f)(ii) and (x) a vote of the stockholders of Seller contemplated by terminates this Agreement at pursuant to Section 7.1(b)(ii) (as a result of Seller’s breach of Section 4.7), Section 7.1(d)(ii) (solely in the Seller Special Meeting to obtain event that the Seller Stockholder Approval has not occurred and been obtained) or Section 7.1(d)(iii), (yB) a proposal with respect to an Alternative Transaction shall have Competing Proposal has been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of such termination of this Agreement; (C) Section 7.01(b) or Section 7.01(f)(iii), and, in either case, a proposal with respect to an Alternative Transaction shall have and has not been publicly proposed or announced or otherwise publicly disclosed and not withdrawn after the date of this Agreement and prior to the date of the such termination, and (C) Seller Special Meeting; enters into a definitive agreement with respect to such Competing Proposal within 12 months after such termination, and such Competing Proposal is subsequently consummated (regardless of whether such consummation happens prior to or (D) Section 7.01(g); then (x) in the case of a termination contemplated by Section 7.02(b)(i)(Afollowing such 12-month period), Seller shall pay or cause to be paid to Buyer then within two three (23) Business Days following after the termination of this Agreement, a fee, by wire transfer in immediately available funds to an account specified by Buyer, equal to $6,400,000 (the “Termination Fee”); (y) in the case of termination contemplated by Section 7.02(b)(i)(D)date that such Competing Proposal is consummated, Seller shall will pay or cause to be paid to Buyer the Seller Termination Fee on the date of termination Fee. For purposes of this Agreement; and (z) in the case of a termination contemplated by Section 7.02(b)(i)(B) or Section 7.02(b)(i)(C7.2(b)(iii), if Sellerthe term “Competing Proposal” will have the meaning assigned to such term in Section 10.1, within twelve (12) months after such termination either consummates an Alternative Transaction or enters into a definitive agreement except that references to implement an Alternative“20%” will be deemed to be references to “50%”. (iiiv) If Buyer or Seller terminates this Agreement pursuant to Section 7.01(f)(iii7.1(d)(iii), then Seller shall reimburse Buyer, or cause Buyer to be reimbursed, for Buyer’s reasonable, documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, provided, however, Seller’s aggregate liability under this Section 7.02(b)(ii7.2(b)(iv) shall not exceed an amount equal to $500,0003,000,000. (iiiv) In the event any amount is payable by Seller pursuant to the preceding clauses(i)-(iv), such amount shall be paid by wire transfer of immediately available funds to an account designated by Buyer. In no event shall Seller be obligated to pay the Seller Termination Fee on more than one occasion. Seller acknowledges that (A) the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement and that without this Section 7.2 Buyer would not have entered into this Agreement and (B) the Seller Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Buyer in the circumstances in which the Seller Termination Fee is payable for the efforts and resources expended and 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 Seller fails to promptly pay any amount due pursuant to this Section 7.2, Seller shall pay to Buyer all reasonable fees, costs and expenses of enforcement (including reasonable attorney’s fees as well as reasonable expenses incurred in connection with any action initiated by Buyer), together with interest on the amount of the Seller Termination Fee at the prime lending rate as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment is required to be made. Subject to Buyer’s rights set forth in Section 10.13, Buyer’s right to receive payment from Seller of the Seller Termination Fee shall be the sole and exclusive remedy of the Buyer Related Parties against Seller, any Seller Subsidiary or any of their respective former, current or future officers, directors, partners, stockholders, managers, members or affiliates (collectively, “Seller Related Parties”) for any loss suffered as a result of the failure of the transactions contemplated hereby to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount (if entitled under this Section 7.2), none of the Seller Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transaction contemplated hereby (except that Seller shall also be obligated with respect to Section 7.2, to the extent applicable, and except that Seller shall remain obligated for, and Buyers and its affiliates may be entitled to remedies with respect to, the provisions and agreements surviving such termination pursuant to Section 7.2(a)).