Specific Performance; Limitation on Damages. (a) The parties agree that irreparable damage would occur in the event that a party does not perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise breaches such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to a party on the basis that (i) such party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. In seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, no party shall be required to provide any bond or other security in connection with any such order or injunction. Until such time as the Company pays the Company Termination Fee or Parent pays the Parent Termination Fee, as the case may be, the remedies available to each party pursuant to this Section 10.06 shall be in addition to any other remedy to which they are entitled at law or in equity, and the election to pursue an injunction or specific performance shall not restrict, impair or otherwise limit Parent, Midco or Merger Sub from, in the alternative, seeking to terminate this Agreement and collect the Company Termination Fee under Section 9.03(a) and Section 9.03(b) or the Company from, in the alternative, seeking to terminate this Agreement and collect the Parent Termination Fee under Section 9.03(c). Notwithstanding anything in this Agreement to the contrary, (A) under no circumstances will the Company be entitled to monetary damages in connection with this Agreement in excess of the aggregate amount of (I) Parent Termination Fee, and (II) any reimbursement obligation of Parent pursuant to Section 9.03(e) and Section 9.03(f), and (B) under no circumstances will Parent be entitled to monetary damages in excess of the aggregate amount of (I) the Company Termination Fee and (II) any reimbursement obligation of the Company pursuant to Section 9.03(e) and Section 9.03(f). (b) Notwithstanding the foregoing, the right of the Company to obtain an injunction, or other appropriate form of specific performance or equitable relief to cause Parent, Midco and Merger Sub to cause the Equity Financing to be funded simultaneously with the receipt of the Debt Financing (whether under this Agreement, the Equity Commitment Letter or the Guarantee) shall be subject to the requirements that: (i) all the conditions to Closing contained in Section 8.01 and Section 8.02 have been satisfied (other than those conditions that by their nature are only capable of being satisfied at the Closing) or waived by Parent, Midco and Merger Sub, (ii) the Debt Financing (and/or, in the event Alternative Debt Financing has been obtained in accordance with Section 7.15 for all or a portion of the Debt Financing, such Alternative Debt Financing) has been funded or would be funded in accordance with the terms thereof at the Closing, if the Equity Financing is funded at the Closing, and (iii) the Company has irrevocably confirmed to Parent in writing that if the Equity Financing and the Debt Financing were funded, it would take such actions that are within its control to cause the Closing to occur. (c) For the avoidance of doubt, under no circumstances shall the Company or Parent be permitted or entitled to receive both (i) a grant of injunction, or other form of specific performance or equitable relief under this Section 10.06 and (ii) monetary damages, including all or any portion of the Parent Termination Fee or the Company Termination Fee, as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Chen Chris Shuning), Merger Agreement (Pactera Technology International Ltd.)
Specific Performance; Limitation on Damages. (a) The parties agree that irreparable damage would occur in the event that a party does not perform the provisions of this Agreement or under the Equity Commitment Letter (including failing to take such actions as are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise breaches such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereofhereof and in the Equity Commitment Letter, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to a party on the basis that (i) such party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. In seeking an injunction or injunctions to prevent breaches of this Agreement or the Equity Commitment Letter and to enforce specifically the terms and provisions of this AgreementAgreement and the Equity Commitment Letter, no party shall be required to provide any bond or other security in connection with any such order or injunction. Until such time as the Company pays the Company Termination Fee or Parent pays the Parent Termination Fee, as the case may be, the remedies available to each party pursuant to this Section 10.06 shall be in addition to any other remedy to which they are entitled at law or in equity, and the election to pursue an injunction or specific performance shall not restrict, impair or otherwise limit Parent, Midco Parent or Merger Sub from, in the alternative, seeking to terminate this Agreement and collect the Company Termination Fee under Section 9.03(a) and Section 9.03(b) or the Company from, in the alternative, seeking to terminate this Agreement and collect the Parent Termination Fee under Section 9.03(c). Notwithstanding anything to the contrary in this Agreement, it is agreed that Parent, Merger Sub and the Company will be entitled to an injunction, specific performance or other equitable relief as provided in this Section 10.06, except that, although the Company, in its sole discretion, may determine its choice of remedies hereunder, under no circumstances will the Company be permitted or entitled to receive both specific performance of the type contemplated by this Section 10.06 and any monetary damages. Notwithstanding anything in this Agreement to the contrary, (A) except for specific performance of the type contemplated by this Section 10.06, under no circumstances will the collective monetary damages payable by Parent, Merger Sub, the Guarantor, the Sponsor, any of their Affiliates or any of the Parent Related Parties for breaches of this Agreement, the Limited Guarantee, the Rollover Agreement or the Equity Commitment Letter exceed an amount in the aggregate equal to the lesser of (A) the Maximum Amount and (B) the sum of the Parent Termination Fee, plus (x) any reimbursement obligation pursuant to Section 7.14 or Section 9.03(e) and (y) the costs of collection and reasonable expenses (including attorneys’ fees) incurred by the Company in connection with the Company’s enforcement of its rights under this Section 10.06 that results in a judgment against Parent or Merger Sub; and under no circumstances will the monetary damages payable by the Company, any of its Subsidiaries, any of its Affiliates or any of the Company Related Parties for breaches under this Agreement exceed an amount equal to the Company Termination Fee, plus any reimbursement obligation pursuant to Section 9.03(e). Notwithstanding anything in this Agreement to the contrary (including the immediately preceding sentence), (i) in no event will any of the Company, its Subsidiaries, its Affiliates or the Company Related Parties seek or obtain, nor will they permit any of their Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary damages recovery or award of any kind, including consequential, special, indirect or punitive damages, in connection with this Agreement the aggregate in excess of the aggregate amount lesser of (IA) the Maximum Amount and (B) the sum of the Parent Termination Fee, and plus (IIx) any reimbursement obligation of Parent pursuant to Section 7.14 or Section 9.03(e) and Section 9.03(f), plus (y) the costs of collection and reasonable expenses (Bincluding attorneys’ fees) incurred by the Company in connection with the Company’s enforcement of its rights under no circumstances will this Section 10.06 that results in a judgment against Parent be entitled to monetary damages in excess or Merger Sub, against Parent, Merger Sub, the Guarantor, the Sponsor, any of their Affiliates or any of the aggregate amount of (I) the Company Termination Fee and (II) any reimbursement obligation of the Company pursuant to Section 9.03(e) and Section 9.03(f).
(b) Notwithstanding the foregoing, the right of the Company to obtain an injunctionParent Related Parties for, or other appropriate form of specific performance or equitable relief to cause Parentwith respect to, Midco and Merger Sub to cause the Equity Financing to be funded simultaneously with the receipt of the Debt Financing (whether under this Agreement, the Equity Commitment Letter Letter, the Limited Guarantee, the Rollover Agreement or the Guarantee) shall be subject Transactions, the breach thereof, the termination of this Agreement, the failure to consummate the requirements that:
(i) all Transactions or any claims or actions under applicable Law arising out of any the conditions to Closing contained in Section 8.01 and Section 8.02 have been satisfied (other than those conditions that by their nature are only capable of being satisfied at the Closing) or waived by Parent, Midco and Merger Sub,
(ii) the Debt Financing (and/or, in the event Alternative Debt Financing has been obtained in accordance with Section 7.15 foregoing for all or a portion of the Debt Financing, such Alternative Debt Financing) has been funded or would be funded in accordance with the terms thereof at the Closing, if the Equity Financing is funded at the Closing, and
(iii) the Company has irrevocably confirmed to Parent in writing that if the Equity Financing and the Debt Financing were funded, it would take such actions that are within its control to cause the Closing to occur.
(c) For the avoidance of doubt, under no circumstances shall the Company or Parent be permitted or entitled to receive both (i) a grant of injunction, or other form of specific performance or equitable relief under this Section 10.06 any reason; and (ii) monetary damagesin no event will Parent, including all Merger Sub, the Guarantor, the Sponsor, any of their Affiliates or any portion of the Parent Termination Fee Related Parties be entitled to seek or obtain, nor will they permit any of their Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary damages or award of any kind, including consequential, special, indirect or punitive damages, in excess of the Company Termination Fee, as applicableplus any reimbursement obligation pursuant to Section 9.03(e), against the Company, its Subsidiaries, its Affiliates or the Company Related Parties for, or with respect to, this Agreement or the Transactions, the breach thereof, the termination of this Agreement, the failure to consummate the Transactions or any claims or actions under applicable Law arising out of any the foregoing for any reason.
Appears in 1 contract
Specific Performance; Limitation on Damages. (a) The parties agree that irreparable damage would occur in the event that a party does not perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise breaches such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to a party on the basis that (i) such party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. In seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, no party shall be required to provide any bond or other security in connection with any such order or injunction. Until such time as the Company pays the Company Termination Fee or Parent pays the Parent Termination Fee, as the case may be, the remedies available to each party pursuant to this Section 10.06 shall be in addition to any other remedy to which they are entitled at law or in equity, and the election to pursue an injunction or specific performance shall not restrict, impair or otherwise limit Parent, Midco Parent or Merger Sub from, in the alternative, seeking to terminate this Agreement and collect the Company Termination Fee under Section 9.03(a) and Section 9.03(b) or the Company from, in the alternative, seeking to terminate this Agreement and collect the Parent Termination Fee under Section 9.03(c). Notwithstanding anything in this Agreement to the contrary, (A) under no circumstances will the Company be entitled to monetary damages in connection with this Agreement in excess of the aggregate amount of (I) Parent Termination Fee, and (II) any reimbursement obligation of Parent pursuant to Section 9.03(e) and Section 9.03(f), and (B) under no circumstances will Parent be entitled to monetary damages in excess of the aggregate amount of (I) the Company Termination Fee and (II) any reimbursement obligation of the Company pursuant to Section 9.03(e) and Section 9.03(f).
(b) Notwithstanding the foregoing, the right of the Company to obtain an injunction, or other appropriate form of specific performance or equitable relief to cause Parent, Midco Parent and Merger Sub to cause the Equity Financing to be funded simultaneously with the receipt of the Debt Financing (whether under this Agreement, the Equity Commitment Letter Agreement or the Guarantee) shall be subject to the requirements that:
(i) all the conditions to Closing contained in Section 8.01 and Section 8.02 have been satisfied (other than those conditions that by their nature are only capable of being satisfied at the Closing) or waived by Parent, Midco Parent and Merger Sub,
(ii) the Debt Financing (and/or, in the event Alternative Debt Financing has been obtained in accordance with Section 7.15 7.14 for all or a portion of the Debt Financing, such Alternative Debt Financing) has been funded or would be funded in accordance with the terms thereof at the Closing, if the Equity Financing is funded at the Closing, and
(iii) the Company has irrevocably confirmed to Parent in writing that if the Equity Financing and the Debt Financing were funded, it would take such actions that are within its control to cause the Closing to occur.
(c) For the avoidance of doubt, under no circumstances shall the Company or Parent be permitted or entitled to receive both (i) a grant of injunction, or other form of specific performance or equitable relief under this Section 10.06 and (ii) monetary damages, including all or any portion of the Parent Termination Fee or the Company Termination Fee, as applicable.
Appears in 1 contract
Specific Performance; Limitation on Damages. (a) The parties agree that irreparable damage would occur in the event that a party does not perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise breaches such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief to a party on the basis that (i) such party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. In seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, no party shall be required to provide any bond or other security in connection with any such order or injunction. Until such time as the Company pays the Company Termination Fee or Parent pays the Parent Termination Fee, as the case may be, the remedies available to each party pursuant to this Section 10.06 shall be in addition to any other remedy to which they are entitled at law or in equity, and the election to pursue an injunction or specific performance shall not restrict, impair or otherwise limit Parent, Midco Parent or Merger Sub from, in the alternative, seeking to terminate this Agreement and collect the Company Termination Fee under Section 9.03(a) and Section 9.03(b) or the Company from, in the alternative, seeking to terminate this Agreement and collect the Parent Termination Fee under Section 9.03(c). Notwithstanding anything in this Agreement to the contrary, (A) under no circumstances will the Company be entitled to monetary damages in connection with this Agreement in excess of the aggregate amount of (I) Parent Termination Fee, and (II) any reimbursement obligation of Parent pursuant to Section 9.03(e) and Section 9.03(f), and (B) under no circumstances will Parent be entitled to monetary damages in excess of the aggregate amount of (I) the Company Termination Fee and (II) any reimbursement obligation of the Company pursuant to Section 9.03(e) and Section 9.03(f).
(b) Notwithstanding the foregoing, the right of the Company to obtain an injunction, or other appropriate form of specific performance or equitable relief to cause Parent, Midco and Merger Sub to cause the Equity Financing to be funded simultaneously with the receipt of the Debt Financing (whether under this Agreement, the Equity Commitment Letter or the Guarantee) shall be subject to the requirements that:
(i) all the conditions to Closing contained in Section 8.01 and Section 8.02 have been satisfied (other than those conditions that by their nature are only capable of being satisfied at the Closing) or waived by Parent, Midco and Merger Sub,
(ii) the Debt Financing (and/or, in the event Alternative Debt Financing has been obtained in accordance with Section 7.15 for all or a portion of the Debt Financing, such Alternative Debt Financing) has been funded or would be funded in accordance with the terms thereof at the Closing, if the Equity Financing is funded at the Closing, and
(iii) the Company has irrevocably confirmed to Parent in writing that if the Equity Financing and the Debt Financing were funded, it would take such actions that are within its control to cause the Closing to occur.
(c) For the avoidance of doubt, under no circumstances shall the Company or Parent be permitted or entitled to receive both (i) a grant of injunction, or other form of specific performance or equitable relief under this Section 10.06 and (ii) monetary damages, including all or any portion of the Parent Termination Fee or the Company Termination Fee, as applicable.
Appears in 1 contract
Samples: Merger Agreement (Ho Chi Sing)
