Common use of Termination Fee; Expenses Clause in Contracts

Termination Fee; Expenses. (a) In the event that (X)(i) this Agreement is terminated by either Buyer or Seller pursuant to (A) Section 7.1(b)(i) at a time when the conditions set forth in Section 6.1(a) or Section 6.1(b) are not satisfied or (B) Section 7.1(b)(ii) if any such Law that makes consummation of the Closing illegal or otherwise prohibited or any such injunction, order or decree of any Governmental Authority, in each case, relates to Competition Laws, and (ii) the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) to be satisfied did not primarily result from the Willful Breach by Seller of any covenant or obligation set forth in this Agreement, including in Section 4.3, or (Y) this Agreement is terminated by either Buyer or Seller pursuant to Section 7.1(b)(iii), then Buyer shall pay, or cause to be paid, to Seller by wire transfer of immediately available funds, a fee in the amount of $45,000,000 as promptly as practicable (and, in any event, within two (2) Business Days) following such termination (the “Antitrust Termination Fee”). In the event of a dispute between the parties regarding whether any material breach of this Agreement by Seller has primarily caused the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) to be satisfied, Buyer shall deposit promptly by wire transfer or delivery of other immediately available funds into an escrow account with a third party reasonably acceptable to Seller, on terms reasonably acceptable to Seller, an amount equal to the Antitrust Break Fee until such dispute is resolved. Notwithstanding anything in this Agreement to the contrary, except in the case of fraud or a Willful Breach of this Agreement, in the event that the Antitrust Termination Fee becomes payable, then payment to Company of the Antitrust Termination Fee, together with any amounts due under Section 7.3(b), shall be Seller’s sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against Buyer, Canada Buyer or any of their respective Affiliates in respect of this Agreement and the transactions contemplated hereby. (b) The parties acknowledge that (i) the agreements contained in Section 7.3 are an integral part of the transactions contemplated by this Agreement, and (ii) without these agreements, the parties would not have entered into this Agreement. Accordingly, if Buyer fails to timely pay any amount due pursuant to this Section 7.3, and, in order to obtain such payment for the amount due pursuant to this Section 7.3, or any portion of such amount, then (A) in the event a court of competent jurisdiction issues a final verdict (not subject to further appeal) in favor of Seller, Buyer shall pay Seller its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 7.3 from the date such payment was required to be made until the date of payment at the annual rate of 5% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law); or (B) in the event a court of competent jurisdiction issues a final verdict (not subject to further appeal) in favor of Buyer, Seller shall pay Buyer its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 7.3 from the date such payment was required to be made until the date of payment at the annual rate of 5% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to the account(s) designated in writing by Seller.

Termination Fee; Expenses. (a) In the event that (X)(i) this Agreement is terminated by either Buyer or Seller Party pursuant to (ASection 10.1(b) or Section 7.1(b)(i10.1(g) and, in each case at a the time when of such termination all of the conditions to the Closing set forth in Section 6.1(a7.1 and Section 7.2 (other than Section 7.2(c)) either have been waived or Section 6.1(b) are not satisfied fulfilled or (B) Section 7.1(b)(ii) would be fulfilled if any such Law that makes consummation of the Closing illegal or otherwise prohibited or any were to occur on such injunction, order or decree of any Governmental Authority, in each case, relates to Competition Laws, and (ii) the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) to be satisfied did not primarily result from the Willful Breach by Seller of any covenant or obligation set forth in this Agreement, including in Section 4.3, or (Y) this Agreement is terminated by either Buyer or Seller pursuant to Section 7.1(b)(iii)date, then Seller shall pay the Termination Fee to Buyer shall pay, or cause to be paid, to Seller within two (2) Business Days after such termination by wire transfer of immediately available fundsfunds to an account designated by Buyer; provided that Seller shall not be required to pay the Termination Fee if at the time of such termination, the Ali Transaction shall not have been completed solely as a fee result of the failure of the condition set forth in Section 6.1(b) or Section 6.1(c) of the amount Ali Merger Agreement (solely to the extent any such “Restraint” under Section 6.1(c) of $45,000,000 as promptly as practicable (and, the Ali Merger Agreement is in any event, within two (2) Business Days) following such termination (the respect of an “Antitrust Law,” as those terms are defined under the Ali Merger Agreement). For purposes of this Agreement, “Termination Fee”). In the event of a dispute between the parties regarding whether any material breach of this Agreement by Seller has primarily caused the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) to be satisfied, Buyer shall deposit promptly by wire transfer or delivery of other immediately available funds into an escrow account with a third party reasonably acceptable to Seller, on terms reasonably acceptable to Seller, an amount equal to the Antitrust Break Fee until such dispute is resolved” means Twenty Five Million Dollars ($25,000,000). Notwithstanding anything in this Agreement to the contrary, except contrary in the case of fraud or a Willful Breach of this Agreement, each of the Seller Parties and Buyer acknowledges and agrees that in the event that Buyer is entitled to receive the Antitrust Termination Fee becomes payable, then payment pursuant to Company of the Antitrust Termination Fee, together with any amounts due under this Section 7.3(b10.3(a), the right of Buyer to receive such amount shall be Seller’s constitute the sole and exclusive remedy as for, and such amount shall constitute liquidated damages for any and all losses or damages of any nature against Buyer, Canada Buyer or any of their respective Affiliates in respect of, any termination of this Agreement for Buyer and any of its direct or indirect, former, current or future Representatives, Affiliates or assignees, regardless of the transactions contemplated hereby. (b) The parties circumstances giving rise to such termination. Each of the Seller Parties expressly acknowledges and agrees that Buyer shall not need to prove damages to receive the Termination Fee when it is payable under this Agreement, and hereby irrevocably waives the right to challenge the amount of actual damages represented by the Termination Fee. In no event shall Buyer be entitled to the Termination Fee on more than one occasion. Furthermore, the Parties acknowledge that (i) the agreements contained in this Section 7.3 10.3(a) are an integral part of the transactions contemplated by this Agreement, and (ii) without these agreements, the parties would not have entered that Buyer has refused to enter into this AgreementAgreement in the absence of this Section 10.3(a). Accordingly, if Buyer fails the Seller Parties fail to timely promptly pay any amount due pursuant to this Section 7.310.3(a), and, and in order to obtain such payment for the amount due pursuant to this Section 7.3, or any portion of such amount, then (A) in the event a court of competent jurisdiction issues a final verdict (not subject to further appeal) in favor of Sellerpayment, Buyer commences a Proceeding against a Seller Party that results in a judgment in Buyer’s favor for such payment, the Seller Parties shall pay Seller to Buyer its reasonable and documented reasonable, out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suitProceeding, together with interest on the amount due pursuant to this Section 7.3 of such payment from the date such payment was required to be made until the date of payment at the annual rate of 5% plus the prime lending rate as published in The the Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law); or (B) in the event a court of competent jurisdiction issues a final verdict (not subject to further appeal) in favor of Buyer, Seller shall pay Buyer its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 7.3 from the date such payment was required to be made until the date of payment at the annual rate of 5% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to the account(s) designated in writing by Sellermade.

Termination Fee; Expenses. (a) In the event that (X)(i) this Agreement is terminated (i) by either Buyer or Seller Parent pursuant to Section 7.1(f) due to a material breach by the Company of its obligations under Section 5.3(a) or Section 5.3(d) and, if such breach is of a nature that it may be cured by the Company, the Company does not cure such breach within 48 hours after such breach; (ii) pursuant to Section 7.1(h); or (iii) by Parent in the event (A) Section 7.1(b)(iprior to the Company Stockholders Meeting, a Competing Transaction shall have been made known to the Company, and the fact of such Competing Transaction shall have become publicly known or shall have been made directly to the stockholders of the Company generally, or any person shall have publicly announced its intention (whether or not conditional) at to make a time when proposal for a Competing Transaction, (B) the conditions condition set forth in Section 6.1(a6.1(a)(i) or Section 6.1(b) are is not satisfied or (B) Section 7.1(b)(ii) if any such Law that makes consummation of the Closing illegal or otherwise prohibited or any such injunction, order or decree of any Governmental Authority, in each case, relates to Competition Lawssatisfied, and (iiC) within 12 months of such termination, the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) to be satisfied did not primarily result from the Willful Breach by Seller of any covenant or obligation set forth in this Agreement, including in Section 4.3Company enters into a definitive agreement with respect to, or consummates, a Company Acquisition (Y) this Agreement is terminated by either Buyer or Seller pursuant to Section 7.1(b)(iiias defined below), then Buyer shall pay, or cause to be paid, to Seller by wire transfer of immediately available funds, a fee in the amount of $45,000,000 as promptly as practicable (and, in any such event, within two (2) Business Days) following such the Company shall pay to Parent a termination (the “Antitrust Termination Fee”). In the event of a dispute between the parties regarding whether any material breach of this Agreement by Seller has primarily caused the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) fee equal to be satisfied, Buyer $32 million and shall deposit promptly by wire transfer or delivery of other immediately available funds into an escrow account with a third party reasonably acceptable pay to Seller, on terms reasonably acceptable to Seller, Parent an amount equal to the Antitrust Break Fee until such dispute is resolved. Notwithstanding anything Parent's reasonable, out-of-pocket expenses incurred in this Agreement to the contrary, except in the case of fraud or a Willful Breach of this Agreement, in the event that the Antitrust Termination Fee becomes payable, then payment to Company of the Antitrust Termination Fee, together connection with any amounts due under Section 7.3(b), shall be Seller’s sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against Buyer, Canada Buyer or any of their respective Affiliates in respect of this Agreement and the transactions contemplated hereby. (b) The parties acknowledge that (i) the agreements contained in Section 7.3 are an integral part of the transactions contemplated by this Agreement. "Company Acquisition" means (x) a merger, consolidation, share ------------------- exchange, business combination or similar transaction involving the Company as a result of which the stockholders of the Company prior to such transaction in the aggregate cease to own at least the Stated Percentage (as defined below) of voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof), (y) a sale, lease, exchange, transfer or other disposition of more than the Stated Percentage of the assets of the Company and (ii) without these agreementsits subsidiaries, the parties would not have entered into this Agreement. Accordingly, if Buyer fails to timely pay any amount due pursuant to this Section 7.3, andtaken as a whole, in order to obtain such payment for a single transaction or series of transactions or (z) the amount due pursuant to this Section 7.3acquisition, by a person (other than Parent or any portion affiliate thereof) or group (as such term is defined under Section 13(d) of such amountthe Exchange Act and the rules and regulations thereunder) of beneficial ownership of more than the Stated Percentage of the Company Common Stock, then in either case whether by tender or exchange offer or otherwise. The "Stated ------ Percentage" shall be 50% unless the Company Acquisition involves a person ---------- (including successors and affiliates) referred to in clause (A) above, in which case the "Stated Percentage" shall be 75% in the event a court case of competent jurisdiction issues a final verdict clause (not subject to further appealx) in favor of Seller, Buyer shall pay Seller its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 7.3 from the date such payment was required to be made until the date of payment at the annual rate of 525% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law); or (B) in the event a court case of competent jurisdiction issues a final verdict clauses (not subject to further appealy) in favor of Buyer, Seller shall pay Buyer its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 7.3 from the date such payment was required to be made until the date of payment at the annual rate of 5% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Lawz). All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to the account(s) designated in writing by Seller.

Termination Fee; Expenses. (a) In the event that (X)(i) this Agreement is terminated (i) by either Buyer or Seller Parent pursuant to Section 7.1(f) due to a material breach by the Company of its obligations under Section 5.3(a) or Section 5.3(d) and, if such breach is of a nature that it may be cured by the Company, the Company does not cure such breach within 48 hours after such breach; (ii) pursuant to Section 7.1(h); or (iii) by Parent in the event (A) Section 7.1(b)(iprior to the Company Stockholders Meeting, a Competing Transaction shall have been made known to the Company, and the fact of such Competing Transaction shall have become publicly known or shall have been made directly to the stockholders of the Company generally, or any person shall have publicly announced its intention (whether or not conditional) at to make a time when proposal for a Competing Transaction, (B) the conditions condition set forth in Section 6.1(a6.1(a)(i) or Section 6.1(b) are is not satisfied or (B) Section 7.1(b)(ii) if any such Law that makes consummation of the Closing illegal or otherwise prohibited or any such injunction, order or decree of any Governmental Authority, in each case, relates to Competition Lawssatisfied, and (iiC) within 12 months of such termination, the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) to be satisfied did not primarily result from the Willful Breach by Seller of any covenant or obligation set forth in this Agreement, including in Section 4.3Company enters into a definitive agreement with respect to, or consummates, a Company Acquisition (Y) this Agreement is terminated by either Buyer or Seller pursuant to Section 7.1(b)(iiias defined below), then Buyer shall pay, or cause to be paid, to Seller by wire transfer of immediately available funds, a fee in the amount of $45,000,000 as promptly as practicable (and, in any such event, within two (2) Business Days) following such the Company shall pay to Parent a termination (the “Antitrust Termination Fee”). In the event of a dispute between the parties regarding whether any material breach of this Agreement by Seller has primarily caused the failure of the conditions set forth in Section 6.1(a) or Section 6.1(b) fee equal to be satisfied, Buyer $32 million and shall deposit promptly by wire transfer or delivery of other immediately available funds into an escrow account with a third party reasonably acceptable pay to Seller, on terms reasonably acceptable to Seller, Parent an amount equal to the Antitrust Break Fee until such dispute is resolved. Notwithstanding anything Parent's reasonable, out-of-pocket expenses incurred in this Agreement to the contrary, except in the case of fraud or a Willful Breach of this Agreement, in the event that the Antitrust Termination Fee becomes payable, then payment to Company of the Antitrust Termination Fee, together connection with any amounts due under Section 7.3(b), shall be Seller’s sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against Buyer, Canada Buyer or any of their respective Affiliates in respect of this Agreement and the transactions contemplated hereby. (b) The parties acknowledge that (i) the agreements contained in Section 7.3 are an integral part of the transactions contemplated by this Agreement. "Company Acquisition" means (x) a merger, consolidation, share exchange, business combination or similar transaction involving the Company as a result of which the stockholders of the Company prior to such transaction in the aggregate cease to own at least the Stated Percentage (as defined below) of voting securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof), (y) a sale, lease, exchange, transfer or other disposition of more than the Stated Percentage of the assets of the Company and (ii) without these agreementsits subsidiaries, the parties would not have entered into this Agreement. Accordingly, if Buyer fails to timely pay any amount due pursuant to this Section 7.3, andtaken as a whole, in order to obtain such payment for a single transaction or series of transactions or (z) the amount due pursuant to this Section 7.3acquisition, by a person (other than Parent or any portion affiliate thereof) or group (as such term is defined under Section 13(d) of such amountthe Exchange Act and the rules and regulations thereunder) of beneficial ownership of more than the Stated Percentage of the Company Common Stock, then in either case whether by tender or exchange offer or otherwise. The "Stated Percentage" shall be 50% unless the Company Acquisition involves a person (including successors and affiliates) referred to in clause (A) above, in which case the "Stated Percentage" shall be 75% in the event a court case of competent jurisdiction issues a final verdict clause (not subject to further appealx) in favor of Seller, Buyer shall pay Seller its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 7.3 from the date such payment was required to be made until the date of payment at the annual rate of 525% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law); or (B) in the event a court case of competent jurisdiction issues a final verdict clauses (not subject to further appealy) in favor of Buyer, Seller shall pay Buyer its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 7.3 from the date such payment was required to be made until the date of payment at the annual rate of 5% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Lawz). All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to the account(s) designated in writing by Seller.