SEC Filings

ENVISION HEALTHCARE CORP filed this Form 8-K on 08/10/2017
Entire Document

9.3 Effect of Termination. In the event that this Agreement is validly terminated in accordance with Section 9.1, then each of the parties hereto shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and none of the parties will have any further Liability hereunder; provided, however, that (i) except as provided in Section 9.5, no such termination shall relieve any party from Liability for any Willful Breach by that party, and (ii) Section 7.8 (Publicity), Section 7.11(b) (Financing Assistance), this Section 9.3, Sections 9.4 and 9.5 and Article XI (Miscellaneous) shall remain in full force and effect and survive any termination of this Agreement in accordance with their respective terms. For purposes of this Agreement, the term “Willful Breach” means a material breach of any representation, warranty or covenant or other agreement set forth in this Agreement that is a consequence of an act or failure to act by the breaching party with the actual knowledge that the taking of such act or failure to take such act would, or would reasonably be expected to, cause a breach of this Agreement.

9.4 Termination Fee. In the event Seller terminates this Agreement as provided above in Section 9.1(f), Buyer shall no later than five (5) Business Days after the date of such termination, pay or cause to be paid to Seller an amount equal to $125,000,000 (the “Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated by Seller. Buyer agrees and confirms that the event or circumstance giving rise to the obligation to pay the Termination Fee would cause significant damage to Seller and that would be inherently difficult to quantify and prove, that without the obligation to pay the Termination Fee under the circumstances set forth herein, Seller would not enter into this Agreement and that the Termination Fee provided for hereunder is intended to provide fair compensation in response to that damage, is not intended to be punitive, and is reasonable in amount in relation to the circumstances under which it would become payable.

9.5 Exclusive Remedy.

(a) From and after the date of this Agreement until the Closing, the sole and exclusive remedy of each party in the event of a breach (including any Willful Breach) of any representation, warranty, covenant or agreement set forth in this Agreement by another party will be (i) termination of this Agreement in accordance with Section 9.1 and pursuit of the post-termination remedies permitted under Section 9.3 or 9.4, as applicable, or (ii) specific performance in accordance with Section 11.1. Notwithstanding the foregoing, in the event that this Agreement is terminated by Seller pursuant to Section 9.1(f) (or pursuant to any other provision of Section 9.1 under circumstances in which it was entitled to terminate this Agreement pursuant to Section 9.1(f)), the right of Seller to receive the Termination Fee (and any interest payable thereon) pursuant to Section 9.4 shall be the sole and exclusive remedy against Buyer and any of its Affiliates, and the Financing Sources for any Losses suffered by Seller, the Company and any of their respective Affiliates or Nonparty Affiliates in connection with this Agreement and the transactions contemplated by this Agreement, and no other amount shall be due and payable by Buyer or any of its Affiliates as a result thereof. For the avoidance of doubt, while Seller may seek specific performance in accordance with Section 11.1 and payment of the Termination Fee (and any interest payable thereon) pursuant to Section 9.4, in no circumstance shall Seller and the Company, collectively, be permitted or entitled to receive (i) payment of monetary damages prior to the termination of this Agreement or in amounts in excess of the Termination Fee, (ii) payment of both monetary