|ENVISION HEALTHCARE CORP filed this Form 8-K on 08/10/2017|
(d) Notwithstanding anything to the contrary set forth in this Agreement, it is explicitly agreed that the right of Seller and the Company to obtain an injunction, or other appropriate form of equitable relief to cause Buyer to complete the Closing shall be subject to the requirement that (i) all conditions set forth in Section 8.1 have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, but provided that each of which shall be capable of being satisfied if the Closing Date were on such date), (ii) the Financing has been funded in full or would be funded in full at the Closing if the Closing were to occur, (iii) Buyer fails to complete the Closing in accordance with Section 2.2 when required to do so hereunder and (iv) Seller has irrevocably confirmed that if specific performance is granted and the Financing is funded, then the Closing will occur pursuant to Section 2.2. In addition, and notwithstanding anything to the contrary set forth in this Agreement, in no event shall Seller and the Company be entitled to receive both (x) a grant of specific performance to cause the Closing to be consummated and (y) payment of the Termination Fee (and any interest payable thereon) pursuant to Section 9.4.
11.2 Payment of Transfer Taxes. All sales, use, transfer, intangible, recordation, documentary stamp or similar Taxes or charges, of any nature whatsoever, applicable to, or resulting from, the transactions contemplated by this Agreement shall be borne equally by the Buyer and the Seller.
11.3 Expenses. Except as otherwise provided in this Agreement, each of the Company, Seller and Buyer shall bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby. Buyer shall pay the fees and expenses of Seller and the Company as contemplated in Sections 7.5(b) and 7.11(b).
11.4 Entire Agreement; Amendments and Waivers. This Agreement (including the Exhibits and Schedules hereto and the Company Disclosure Schedule) and the Confidentiality Agreement represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof. This Agreement may only be amended, supplemented or changed by a written instrument signed by each of the parties hereto. Each provision in this Agreement may only be waived by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such provision so waived is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Notwithstanding anything