Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. If this Agreement is terminated by Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(e), within five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Four Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Seller would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and acknowledge that the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be difficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, payment of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such payment of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following the termination of this Agreement none of the Buyer or its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Break-Up Fee when due pursuant to this Section 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, or the Buyer against the Selling Parties, in connection with payment or collection of the Break-up Fee, the prevailing party in such action shall be entitled to recover attorneys’ fees, expenses, and court costs incurred in connection therewith.

Break-Up Fee. (a) If this Agreement is terminated (i) by Seller pursuant to Section 6.5(e) or Section 6.5(f), or (ii) by Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(e6.5(g), within five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Four Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay Seller the Break-Up Fee ifby wire transfer of immediately available funds to an account designated by Seller, in order to consummate the Contemplated Transactions, the Buyer or the Seller would be required within three (and solely to the extent that in the judgment 3) Business Days of the FTC, Antitrust Division date of termination of this Agreement (if so terminated by Seller) or other Governmental Authority, prior to or contemporaneously with the Antitrust Laws would termination of this Agreement (if so require), to (aterminated by Buyer) litigate or participate in provided the litigation of any Proceeding involving termination shall not be effective unless Seller has received the FTC, Antitrust Division or other Governmental Authority; Break-Up Fee. (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree Buyer and Seller hereby acknowledge that the obligation to deliver the Break-Up Fee (to the extent due hereunder) shall survive the termination of this Agreement and shall be paid pursuant to the terms herein. (c) Each of the Parties hereto acknowledges and agrees that in light of the difficulty of accurately reflects determining actual damages with respect to the foregoing, upon any such termination of this Agreement by Seller in circumstances where the Break-Up Fee is required to be paid pursuant to this Section 6.7, the right to the Break-Up Fee constitutes a reasonable estimate of the loss Losses that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages (and not a penalty). (d) The Parties hereunder acknowledge that the Selling Parties would likely sustain agreements contained in this Section 6.7 are an integral part of the transactions contemplated by way of such terminationthis Agreement, and that damages that, without these agreements, neither of the Parties hereto would enter into this Agreement. For the avoidance of doubt, subject to the Selling Parties would be difficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 terms and the Buyer pays the Break-up Feeconditions set forth herein, payment of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such upon payment of the Break-Up Fee Fee, Buyer shall constitute liquidated damages, and not a penalty), and have no further liability under or in such case, following the termination respect of this Agreement none of the Buyer or its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Break-Up Fee when due pursuant to this Section 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, or the Buyer against the Selling Parties, in connection with payment or collection of the Break-up Fee, the prevailing party in such action shall be entitled to recover attorneys’ fees, expenses, and court costs incurred in connection therewithTransaction Document.

Break-Up Fee. If this Agreement is terminated by the Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(e), within five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Four Seven Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.007,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Seller Sellers would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and acknowledge that the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be difficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, payment of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such payment of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following the termination of this Agreement none of the Buyer or its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Break-Up Fee when due pursuant to this Section 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, or the Buyer against the Selling Parties, in connection with payment or collection of the Break-up Fee, the prevailing party in such action shall be entitled to recover attorneys’ fees, expenses, and court costs incurred in connection therewith.

Break-Up Fee. (a) If this Agreement is terminated by Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(e9.1(b), within five (5) Business Days after the date of such terminationthen, the Buyer shall pay the Selling Parties a fee in the amount of Four Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of all other Claims and remedies that might otherwise be available with respect thereto, including elsewhere hereunder and notwithstanding any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Seller would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and acknowledge that the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be difficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, payment of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such payment of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following the termination provision of this Agreement none of the Agreement: (i) if Buyer or has breached its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Break-Up Fee when due Purchase Price pursuant to Sections 2.2 and 2.5 or its obligations under Section 6.1(a), 6.1(c) or 6.28 and, in the case of Section 6.28, such breach has not been cured within one Business Day, then Buyer shall pay to Seller, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; (ii) if Seller has breached its obligations to sell the Company Interests to Buyer pursuant to Sections 2.1 and 2.4 or its obligations under Section 6.1(a) or 6.1(c), then Seller shall pay Buyer, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, 10% of the Base Purchase Price; or (iii) if either Buyer or Seller has materially breached any representation, warranty, covenant, agreement or obligation hereunder (other than those referred to in Sections 9.3(a)(i) and 9.3(a)(ii)), then the breaching Party shall pay to the other, by wire transfer of immediately available funds within three Business Days following the date of termination, as liquidated damages, the terminating Party’s actual and reasonable out-of-pocket fees (including reasonable attorney’s fees and regulatory filing fees) and expenses incurred in connection with this Agreement, subject to a maximum of $4,000,000. (b) The provision for payment of liquidated damages in this Section 7.3; provided further that 9.3 has been included because, in the event an action is commenced of a breach by either Buyer or Seller, as the Selling Parties against the Buyer, or the Buyer against the Selling Parties, in connection with payment or collection of the Break-up Feecase may be, the prevailing party in actual damages to be incurred by any Party can reasonably be expected to approximate the amount of liquidated damages called for herein and because the actual amount of such action shall damages would be entitled difficult if not impossible to recover attorneys’ fees, expenses, and court costs incurred in connection therewithmeasure accurately.

Break-Up Fee. If (a) If, upon satisfaction or waiver of all conditions to the obligations of the Sellers to effect the Closing contained in this Agreement is terminated (other than any such conditions which, by Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(etheir nature, can only be satisfied at Closing), within Purchaser is ready and willing to close and the Closing shall not occur solely due to a bad faith and intentional breach by any Seller of any representation, warranty or covenant contained herein, then Sellers shall jointly and severally pay Purchaser an amount in cash equal to $1,500,000 (one million five (5hundred thousand dollars) Business Days after the date of such termination, the Buyer shall pay the Selling Parties as liquidated damages and not a fee in the amount of Four Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.00) (“Break-Up Fee”)penalty, which payment shall not be deemed due and payable five Business Days following the earliest possible date on which the Closing would have occurred in the absence of such Seller's bad faith and intentional breach. (b) If (i) Sellers shall, as a penalty but will constitute liquidated damages in lieu result of any Seller's bad faith and all claims for costs or damages of any nature whatsoever; provided howeverintentional breach, in no event shall the Buyer be obligated to pay make the Break-Up Fee ifpayment referenced in Section 4.5(a) and (ii) Sellers shall have entered into a definitive agreement for the acquisition (by merger, in order to consummate the Contemplated Transactions, the Buyer or the Seller would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and acknowledge that the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be difficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, payment of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort stock purchase or otherwise) of the Selling Parties against the Buyer and its Affiliates for Companies or all or any Losses suffered material portion of their collective assets (including by merger or incurred as a result of, or in connection with, the failure purchase of the Closing to occur (and such payment stock or equity of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following Companies) within nine months of the termination of this Agreement none Agreement, then Sellers shall jointly and severally pay Purchaser $5,500,000 (five million five hundred thousand dollars) in addition to any amounts payable pursuant to Section 4.5(a), in cash as liquidated damages and not a penalty which payment shall be due and payable five Business Days following consummation the acquisition contemplated by such agreement. (c) The parties hereto acknowledge that because of the Buyer or its Affiliates shall have any Liability arising out of or unique circumstances relating to this Agreement and the Acquisition it would be difficult or impossible to determine with precision the transactions contemplated hereby other than Buyer’s obligation to pay amount of damages that would or might be incurred by Purchaser as a consequence of Sellers' breach of its obligations under this Agreement, and that Purchaser shall be damaged as a result of such breach, and that the Break-Up Fee when due pursuant to liquidated damages payments set forth in this Section 7.3; provided further 4.5 represents a reasonable estimate of fair compensation for the loss of business opportunity and other damages that may be reasonably anticipated to be suffered by Purchaser as a consequence of such breach and such payment is in the event an action is commenced by either the Selling Parties against the Buyer, or the Buyer against the Selling Parties, in connection with payment or collection of the Break-up Fee, the prevailing party in such action shall addition to any other remedies (but not other money damages remedies) to which Purchaser may be entitled to recover attorneys’ fees, expenses, and court costs incurred in connection therewithunder this Agreement.

Break-Up Fee. If this Agreement is terminated by the Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(e), within five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Four Two Million Three Hundred Twenty-Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.002,328,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Seller Sellers would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and acknowledge that the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be difficult to ascertain. In the event the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, payment of such fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any Losses suffered or incurred as a result of, or in connection with, the failure of the Closing to occur (and such payment of the Break-Up Fee shall constitute liquidated damages, and not a penalty), and in such case, following the termination of this Agreement none of the Buyer or its Affiliates shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby other than Buyer’s obligation to pay the Break-Up Fee when due pursuant to this Section 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, or the Buyer against the Selling Parties, in connection with payment or collection of the Break-up Fee, the prevailing party in such action shall be entitled to recover attorneys’ fees, expenses, and court costs incurred in connection therewith.