February 15, 2020

Reverse Break Fees

Reverse Break Fees: consequence if deal not consummated due to failure to obtain antitrust clearance

Actavis/Forest Labs. (FTC 2014) | Actavis/Warner Chilcott (FTC 2013) | Albertsons/Safeway (FTC 2014) | American Airlines/U.S. Airways (DOJ 2013) | Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13) | Anheuser-Busch Inbev/SabMiller (TBA 2015)AT&T/DirecTV (DOJ 2014) | Comcast/Time Warner (DOJ 2014) | ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014) | Dollar Tree/Family Dollar (FTC 2014-2015)Express Scripts/Medco (FTC 2011-12)  | Gannett Co./Belo Corp. (DOJ 2013) | Jos A. Bank/Men’s Warehouse (FTC 2014) | Kroger/Harris Teeter (FTC 2014) | Medtronic/Covidien (FTC 2014)Mylan/Agila Specialties (FTC 2013) | National CineMedia/Screenvision (DOJ 2014-2015)Nielsen Holdings/Arbitron (FTC 2012-14) | Office Depot/OfficeMax (FTC 2013)  | Pinnacle Entertainment/Ameristar Casinos (FTC 2013) | Sysco/US Foods (FTC 2014) | Tyson Foods/Hillshire Brands (TBD 2014) | Verso Paper/Newpage Holdings (DOJ 2014-2015)Western Digital/Hitachi (FTC 2012) | Zillow/Trulia (FTC 2014-2015)


Actavis/Forest Laboratories (FTC 2014)

(g)            Reverse Break Fees.  §8.29(c)(i)

If (A) the Company or Parent terminates this Agreement pursuant to Section 8.1(c) or Section 8.1(h), (B) a Parent Competing Proposal shall have been publicly disclosed and not publicly, irrevocably withdrawn prior to the date of the Parent Special Meeting, and (C)(1) any Parent Competing Proposal is consummated within twelve (12) months of such termination or (2) Parent enters into a definitive agreement providing for a Parent Competing Proposal within twelve (12) months of such termination and such Parent Competing Proposal is consummated, within one (1) business day after the date any such Parent Competing Proposal is consummated Parent shall pay a fee of $1,175,000,000 in cash (the “Parent Termination Fee”).

Actavis/Warner Chilcott (FTC 2013)

(g)            Reverse Break Fees.  N/A.

Albertsons/Safeway (FTC 2014)

(g)            Reverse Break Fees.  § 7.2(c)

Parent Termination Fee. In the event that: (i) This Agreement is terminated by the Company or Ultimate Parent pursuant to Section 7.1(b)(i) and (A) as of the date of such termination the condition set forth in Section 6.1(c) shall not have been satisfied, (B) the Company had the right to terminate this Agreement pursuant to Section 7.1(b)(i), and (C) immediately before such termination, the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(d) would have been satisfied had the Closing taken place as of the date of termination; (ii) this Agreement is terminated by the Company or Ultimate Parent pursuant to Section 7.1(b)(ii) (provided that such final and non-appealable injunction or similar order permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger shall have been issued or entered pursuant to applicable Antitrust Laws) and (A) the Company had the right to terminate this Agreement pursuant to Section 7.1(b)(ii), and (B) immediately before such termination, the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(d) would have been satisfied had the Closing taken place as of the date of termination; (iii) this Agreement is terminated by the Company pursuant to Section 7.1(d)(iii); (iv) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii); or (v) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(iii) and at the time of such termination the Company would have been entitled to terminate this Agreement pursuant to Section 7.1(d)(ii); then the Parent Entities shall, jointly and severally, in any such event under clauses (i) through (iv) of this Section 7.2(c), pay to the Company a termination fee of $400 million in cash (the “Parent Termination Fee”) by wire transfer of immediately available funds no later than two (2) Business Days after the date of such termination (it being understood that in no event shall the Parent Entities, collectively, be required to pay the Parent Termination Fee on more than one occasion). For the avoidance of doubt, the Parent Entities have a joint and several obligation to pay the Parent Termination Fee pursuant to clause (i) above notwithstanding that a Governmental Entity has required that the Parent Entities and/or the Company (or any of their Subsidiaries) take one or more actions to obtain approval under the HSR Act that, if taken, would constitute an Antitrust Material Adverse Effect. The Parties have agreed in light of the circumstances existing at the time of execution of this Agreement (including the inability of the Parties to quantify the damages that may be suffered by the Company) this Section 7.2(c) is reasonable, that the Parent Termination Fee represents a good faith, fair estimate of the damages that the Company would suffer in the applicable circumstances and that the Parent Termination Fee shall be payable as liquidated damages (and not as a penalty) without requiring the Company to prove actual damages. Notwithstanding anything to the contrary in this Agreement, in the event that the Parent Entities and/or Merger Sub fail to effect the Closing for any reason or no reason or otherwise breach this Agreement (whether willfully, intentionally, knowingly or otherwise) or fail to perform hereunder (whether willfully, intentionally, knowingly or otherwise), then, except for an order of specific performance as and only to the extent expressly permitted by Section 8.13, the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of the Company, its Subsidiaries and the Company Related Parties against the Parent Entities and each of their respective former, current or future equity holders, controlling Persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, stockholders, Affiliates, Representatives or assignees and any and all former, current or future equity holders, controlling Persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, stockholders, Affiliates or assignees of any of the foregoing, and any and all former, current or future heirs, executors, administrators, trustees, successors or assigns of any of the foregoing, (each, a “Parent Related Party,” and collectively, the “Parent Related Parties”) in respect of this Agreement, any Contract or agreement executed in connection herewith (including the Debt Commitment Letters, the Equity Commitment Letter and the Guarantees) and the transactions contemplated hereby and thereby shall be to terminate this Agreement in accordance with this Article VII and collect hereunder or as otherwise provided in the Guarantees, if due, (i) the Parent Termination Fee pursuant to this Section 7.2(c); (ii) any amount due pursuant to Section 7.5, Section 7.6, and clause (ii) of Section 7.2(a); and (iii) any costs, expenses and/or interest payable pursuant to Section 7.2(d), and upon payment of all such amounts, no Parent Related Party shall have any other liability or obligation for any or all losses or damages suffered or incurred by the Company or any other Company Related Party in connection with this Agreement (including the Debt Commitment Letters, the Equity Commitment Letter and the Guarantees) (including the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and neither the Company nor any other Company Related Party shall be entitled to bring or maintain any other claim, action or proceeding against the Parent Entities, Merger Sub or any other Parent Related Party arising out of this Agreement or any of the transactions contemplated hereby or any matters forming the basis for such termination. Notwithstanding anything to the contrary in this Agreement, the Company agrees that the maximum aggregate liability of the Parent Entities, under this Agreement shall be limited to an amount equal to the Parent Termination Fee, plus the applicable amounts referenced in clauses (ii) and (iii) of the prior sentence, and in no circumstances shall the Company seek any money damages in excess of such amount.

American Airlines/US Airways (DOJ 2012)

(g)            Reverse Break Fees.  N/A.

Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13)

(g)            Reverse Break Fees.  § 10.04(a)-(b): Termination Fee:

(a) Subject to Section 7.02(f), in the event that (i) this Agreement is terminated by ABI or the Company pursuant to Section 10.01(b) or Section 10.01(c) (in the case of Section 10.01(c), as a result of any law, regulation, judgment, injunction, order or decree based on or arising under any Antitrust Law (other than any Antitrust Law under the Laws of Mexico)) and (ii) as of the date of termination, (A) any of the conditions set forth in Section 8.01(a) (other than in respect of the Required Approval set forth in item 2 of Annex A), Section 8.01(b) or Section 9.01(c) (in the case of Section 8.01(b) or Section 9.01(c), as a result of any injunction, judgment, order, decree, ruling, law, statute, rule, regulation or executive order in each case based on or arising under any Antitrust Law (other than any Antitrust Law under the Laws of Mexico)) has not been satisfied and (B) all other conditions waivable unilaterally by ABI set forth in Article 8 or, if termination occurs following the Effective Time, Article 9 shall have been satisfied or waived (or, in the case of conditions that by their nature are to be satisfied on the Closing Date, shall be capable of being satisfied on such date if such date were to occur), then ABI Holdings shall, and ABI shall cause ABI Holdings to, pay to the Company, acting solely as agent in accordance with Section 10.04(b) on behalf of (x) if such termination occurs prior to the Effective Time, the holders of Company Series A Shares and Company Series C Non-Voting Shares, or (y) if such termination occurs following the Effective Time, the holders of Company Series C Shares other than ABI or its Affiliates (the holders referenced in clause (x) or (y), as applicable, the “Holders”), to be allocated in each case on a pro rata basis as determined by the Company, a cash termination fee equal to $650,000,000 in the aggregate (the “Termination Fee”).

                        (b) In the event that the Termination Fee becomes payable pursuant to Section 10.04(a), ABI Holdings shall, and ABI shall cause ABI Holdings to, remit to the Company or the Company’s designee (as directed by the Company), on behalf of the Holders and for distribution by the Company to the Holders, an amount equal to the Termination Fee, less all Antitrust Damages (as defined below) (the “Net Termination Fee”) by wire transfer of immediately available funds within two Business Days of the date of termination of this Agreement. The payment of the Net Termination Fee by ABI Holdings to the Company shall be the sole obligation of ABI Holdings to pay the Termination Fee (and, to the extent of ABI’s obligation to cause ABI Holdings to make such payment, the sole obligation of ABI), it being understood that no shareholder of the Company shall have any recourse or rights against ABI, ABI Sub or ABI Holdings with respect to the Company’s actions as agent on behalf of the Holders or the Company’s obligation to distribute the Net Termination Fee or the Termination Fee to the Holders. Notwithstanding any other provision of this Agreement to the contrary, no portion of the Termination Fee shall become payable while the Company, any of the Holders or Diblo pursues a claim in respect of one or more breaches by ABI, ABI Holdings or ABI Sub of any of their respective covenants or agreements contained in Section 7.02 or any other obligation or provision in this Agreement to the extent such other obligation or provision relates to Antitrust Law matters (an “Antitrust Claim”), until such litigation shall have been finally resolved by a final, non-appealable judgment of a court of competent jurisdiction or mutually satisfactory release with prejudice of any and all claims. The amount of the Termination Fee shall be reduced by an amount equal to the product of (x) the percentage of the total outstanding capital stock of the Company represented by the Company Shares, multiplied by (y) the sum of all amounts paid or payable by ABI, ABI Sub or ABI Holdings in respect of any such Antitrust Claim (including any interest or penalties) (such product, the “Antitrust Damages”). The Company shall receive and hold the Termination Fee or the Net Termination Fee, as applicable, as agent on behalf of the Holders. Within five Business Days of receipt by the Company or the Company’s designee of the Termination Fee or the Net Termination Fee, the Company shall, or shall cause such designee to, pay the Termination Fee or the Net Termination Fee, as the case may be, on a pro rata basis as determined by the Company, to the Holders of record of Company Series A Shares and Company Series C Non-Voting Shares, or, if the termination of this Agreement occurs following the Effective Time, the Holders of Company Series C Shares other than ABI or its Affiliates, in each case as of the open of business in Mexico City, Mexico on the date of the Company’s public announcement of the termination of this Agreement, it being understood that each such Holder and not the Company shall be responsible for the payment of any applicable taxes in connection with the receipt by such Holder of his or her pro rata allocation of the Termination Fee or the Net Termination Fee.

                        (c) Notwithstanding any other provision of this Agreement to the contrary, the written acceptance by the Company of the payment by ABI Holdings of the Termination Fee or the Net Termination Fee shall be deemed to be an irrevocable waiver by the Company, on behalf of itself and all of its shareholders, and Diblo of any and all Antitrust Claims against ABI, ABI Sub and ABI Holdings, and shall extinguish any right of the Company, on behalf of itself and its shareholders, and Diblo to sue or pursue any such Antitrust Claim against any of ABI, ABI Sub and ABI Holdings, and in such event the Company and Diblo shall terminate with prejudice any pending litigation pursuing any such Antitrust Claim commenced prior to accepting the Termination Fee or the Net Termination Fee (it being understood that the failure by the Company to return the Termination Fee or the Net Termination Fee, as applicable, to ABI Holdings within five (5) Business Days of payment to the Company thereof shall be deemed to be a written acceptance of the Termination Fee or the Net Termination Fee, as the case may be, for purposes of this Section 10.04(c)); provided, however, that nothing in this Section 10.04(c) shall limit or affect in any way the ability of the Company to accept the Net Termination Fee and enforce, prior to the payment of the Termination Fee or Net Termination Fee, as the case may be, any judgment obtained against ABI, ABI Holdings or ABI Sub or settlement entered into with ABI, ABI Holdings or ABI Sub following the final resolution of litigation relating to any Antitrust Claim as contemplated in Section 10.04(b).

                        (d) The parties hereto acknowledge that the Company shall have the sole and exclusive right, on behalf of the Holders, to enforce the obligation of ABI and ABI Holdings to pay the Termination Fee (including the Net Termination Fee) in accordance with the terms of this Agreement through any suit, action or other legal proceeding. In exchange for the right to receive its portion of the Termination Fee or the Net Termination Fee as provided herein, each Holder shall be deemed to have agreed that the Company shall be appointed, authorized and empowered, on behalf of such Holder, to act as sole and exclusive agent and attorney-in-fact, under any and all applicable Laws, with the sole and exclusive right to enforce (whether through any suit, action or proceeding for specific performance or any other remedy at law or in equity) on behalf of such Holder ABI’s or ABI Holdings’ obligation to pay the Termination Fee or the Net Termination Fee, as the case may be, in accordance with the terms of this Agreement (including the right to refrain from enforcing such obligation on behalf of such Holder) and to take any and all actions that may be necessary or desirable, as determined by the Company in its sole discretion, in connection therewith, and each such Holder shall be deemed to have waived any right to enforce such obligation with respect to the Termination Fee or the Net Termination Fee, as the case may be, individually. Without prejudice to the Company’s right to obtain an injunction or specific performance of this Agreement or any other remedy to which it is entitled at law or in equity, the parties hereto acknowledge and agree that in the event that any suit, action or other proceeding is brought by the Company alleging any Antitrust Claim, the amount of the Termination Fee, to the extent already paid to the shareholders pursuant to this Section 10.04, shall be credited against any Antitrust Damages that the shareholders of the Company may be entitled to receive.

                        (e) The parties acknowledge and agree that the agreements contained in this Section 10.04 are an integral part of this Agreement and the transactions contemplated hereby and that, without these agreements, the Company would not have entered into this Agreement; accordingly, if ABI or ABI Holdings fails promptly to pay the Termination Fee or the Net Termination Fee when due pursuant to and in accordance with this Section 10.04 and, in order to obtain such payment, the Company commences a suit, action or other proceeding that results in a judgment against ABI or ABI Holdings directing it to pay such Termination Fee or Net Termination Fee, or if payment of any portion of the Termination Fee is deferred pursuant to Section 10.04(b) while litigation is ongoing, ABI and ABI Holdings, as applicable, shall pay to the Company the amount of the Termination Fee together with interest on the amount of the Termination Fee from the date such payment was required to be made until the date of receipt of payment by the Company at LIBOR in effect on the date such payment was required to be made. In no event shall the Termination Fee referred to in this Section 10.04 be paid (i) on more than one occasion or (ii) following an exercise by the Company of its call option held in relation to Crown JV set forth Section 12.8 or 12.9 of the Crown JV Agreement (x) in violation of Section 5.01(g) or Section 5.01(h) or (y) if such exercise shall have materially contributed to the failure to obtain the Required Approval set forth in item 2 of Annex A. ABI and ABI Holdings’ obligation to pay the Termination Fee shall survive the termination of this Agreement, subject to the terms and conditions hereof.


Anheuser-Busch Inbev/SabMiller (TBA 2015)


(g)               Reverse Break Fees. § 1.1, 9.1(c)-(d). In this Agreement, the following words and expressions have the meanings given below: . . . Break Payment means the sum of US$3,000,000,000 (US$ three billion);

                        9.1 By way of compensation for any loss or damage (including, but not limited to, incurring substantial costs and expenses, lost opportunity costs, business dislocation, reputational harm or adverse market reaction) that may be suffered by SABMiller or its shareholders on the occurrence of a Break Payment Event, subject to Clause 9.2, AB InBev shall pay, or shall procure the payment by a member of the AB InBev Group of, the Break Payment to SABMiller in the event that, following the publication of the Announcement in accordance with Clause 2.1:

                        . . . .

                        (c) on or prior to the Long Stop Date, AB InBev invokes (and is permitted by the Panel to invoke) any Pre-Condition and/or any Regulatory Condition so as to cause the Transaction not to proceed, to lapse or be withdrawn; or

AT&T/DirecTV (DOJ 2014)

(g)             Reverse Break Fees.  N/A

Comcast/Time Warner (DOJ 2014)

(g)                      Reverse Break Fees.  N/A

ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014)

(g)     Reverse Break Fees.  N/A.


Dollar Tree/Family Dollar (FTC 2014-2015)



(g)               Reverse Break Fees. N/A.

Express Scripts/Medco (FTC 2011)

(g)            Reverse Break Fees.  N/A.

Gannett Co./Belo Corp. (DOJ 2013)

(g)            Reverse Break Fees.  N/A.

Jos A. Bank/Men’s Wearhouse (FTC 2014)

(g)            Reverse Break Fees.  N/A

Kroger/Harris Teeter (FTC 2014)

(g)     Reverse Break Fees.  §7.3(b)

The Company shall pay to Parent a termination fee in the amount of Seventy-Five Million Dollars ($75,000,000) (the “Company Termination Fee”) in immediately available funds if: (i) (A) this Agreement is terminated by Parent pursuant to Section 7.1(b), 7.1(d) or 7.1(g); and (B)(1) before such termination, an Acquisition Proposal with respect to the Company was commenced, received by the Company, publicly proposed or publicly disclosed; and (2) within 12 months after such termination, the Company enters into a definitive written agreement relating to an Acquisition Proposal or consummates a transaction contemplated by an Acquisition Proposal; provided, that for purposes of clause (2) above the references to “25%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”; (ii) The Company has terminated this Agreement pursuant to Section 7.1(f); (iii) Parent has terminated this Agreement pursuant to Section 7.1(e); or (iv) after receiving an Acquisition Proposal, (A) the Company Board does not take action to convene the Company Shareholder Meeting and (B) within 12 months after such receipt of such Acquisition Proposal, the Company enters into a definitive written agreement relating to an Acquisition Proposal or consummates a transaction contemplated by an Acquisition Proposal. The Company Termination Fee must be paid no later than two Business Days following the event that triggers such payment described in Section 7.3(b)(i), (ii), (iii) or (iv). In the event that Parent shall receive full payment of the Company Termination Fee the receipt of such amount shall be deemed to be liquidated damages and the sole and exclusive remedy of Parent, Merger Sub and their Affiliates against the Company and its Subsidiaries or any of their respective former, current or future equity holders, controlling persons, directors, officers, employees, agents, Representatives, general or limited partners, managers, management companies, members, shareholders, Affiliates or assignees and any and all former, current or future equity holders, controlling persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, shareholders, Affiliates or assignees of any of the foregoing, and any and all former, current or future heirs, executors, administrators, trustees, successors or assigns of any of the foregoing (collectively, “Company Related Parties”), and no Company Related Party shall have any other liability or obligation for any or all losses or damages suffered or incurred by Parent, Merger Sub or any other Parent Related Parties in connection with this Agreement (and the termination hereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Parent Related Party shall be entitled to bring or maintain any other claim, action or proceeding against the Company, any of its Affiliates or any other Company Related Party arising out of this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination. For the avoidance of doubt (A) under no circumstances will Parent or Merger Sub be entitled to amounts in excess of the amount of the Company Termination Fee and (B) while Parent and Merger Sub may pursue both a grant of specific performance in accordance with Section 8.10 and the payment of the Company Termination Fee underSection 7.3(b), under no circumstances shall Parent or Merger Sub be permitted or entitled to receive both a grant of specific performance that results in a Closing and any portion of the Company Termination Fee. The Parties acknowledge and agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events.


Medtronic/Covidien (FTC 2014)



(g)       Reverse Break Fees. § 9.2: In the event of a Specified Termination, then Medtronic shall pay to Covidien $850,000,000 (the “Reverse Termination Payment”) in cleared, immediately available funds as promptly as possible (but in any event within three Business Days) thereafter.


Mylan/Agila Specialties (FTC 2013)

(g)               Reverse Break Fees.  N/A


National CineMedia/Screenvision (DOJ 2014-2015)


(g)        Reverse Break Fees. § 8.03(a): Termination Fees. (a) If Company Member terminates this Agreement (or could have terminated this Agreement but for the prior termination of this Agreement by Parent pursuant to Section 8.01(b)(ii) or Section 8.01(d)) pursuant to (w) Section 8.01(c)(i), (x) Section 8.01(c)(ii), (y) Section 8.01(d) or (z) Section 8.01(c)(iii) and in the case of this clause (z), all of the conditions to Parent’s obligations to consummate the Closing under Section 7.02 (other than Section 7.02(d)) have been satisfied (other than any such conditions (x) which by their nature are to be satisfied by the Closing Date or (y) that have not been satisfied as a result of Parent’s failure to fulfill any of its obligations under this Agreement or perform or comply with any of the covenants, agreements, or conditions hereof to be performed or complied with by Parent prior to the Closing), the parties agree that Company Member shall have suffered a loss and value to the Company of an incalculable nature and amount, unrecoverable in Law, and Parent shall pay to Company Member a fee of $28.84 million (the “Reverse Termination Fee”), it being understood that in no event shall Parent be required to pay the Reverse Termination Fee on more than one occasion. The Reverse Termination Fee shall be payable in immediately available funds by wire transfer no later than ten Business Days after such termination.

Nielsen Holdings/Arbitron (FTC 2012-13)

(g)            Reverse Break Fees.  § 6.08(c)-(e): Fees and Expenses. . . .

(c) In the event that (i) Parent or the Company terminates this Agreement (A) pursuant to Section 8.01(b)(i) or Section 8.01(c) and at the time of such termination (1) any of the conditions set forth in Section 7.01(b) or Section 7.01(c) (due to any antitrust Law or Judgment issued by any Governmental Entity under any antitrust Law) has not been satisfied or (2) litigation with any Governmental Agency of the U.S. Federal government that is challenging the consummation of the Merger under any antitrust Law has been commenced or threatened in writing or such litigation could reasonably be expected, or (B) pursuant to Section 8.01(b)(ii) (due to any antitrust Law or Judgment issued by any Governmental Entity under any antitrust Law), or (ii) the Company terminates this Agreement pursuant to Section 8.01(e) (as a result of Parent’s or Merger Sub’s material breach of its obligations under Section 6.03), then Parent shall pay to the Company a non-refundable fee in the amount of $131.0 million (the “Reverse Termination Fee”) by wire transfer of same-day funds, no later than two (2) Business Days following such termination. Notwithstanding the foregoing, Parent shall not be required to pay the Reverse Termination Fee pursuant to clause (i) of the preceding sentence if (X) there has been a Willful Breach by the Company of its obligations set forth in Section 5.01, which breach, individually or in the aggregate with any other Willful Breaches of Section 5.01, has resulted or would reasonably be expected to result in a Company Material Adverse Effect or (Y) there has been a Willful Breach by the Company of its obligations set forth in Section 5.03, Section 6.01, Section 6.02, Section 6.03, Section 6.04(e) or Section 6.04(f); provided, however, notwithstanding that there has been a Willful Breach, Parent shall be required to pay the Reverse Termination Fee unless Parent has promptly asserted, in a prior written notice delivered to the Company, any such Willful Breach and the Company has not cured by such Willful Breach prior to the earliest of (1) thirty (30) days after delivery of such written notice, (2) termination of this Agreement by the Company and (3) the Outside Date. Parent shall not deliver any notice of Willful Breach after either party delivers a notice of termination of this Agreement.

                        (d) With respect to any actions taken by the Company or Parent to collect the Termination Fee or Reverse Termination Fee (as applicable), the prevailing party shall promptly reimburse the other party for all reasonable documented out-of-pocket fees and expenses incurred by the prevailing party (including the reasonable fees and expenses of all attorneys, consultants, economists and other experts retained by the prevailing party and all reasonable duplicating, travel and related expenses).

                        (e) Acceptance by Parent of the fee due under Section 6.08(b)(III) shall constitute acceptance by Parent of the validity of any termination of this Agreement under Section 8.01(f). Notwithstanding anything in this Agreement to the contrary, in the event that the Termination Fee or the Reverse Termination Fee becomes payable pursuant to Section 6.08(b) or Section 6.08(c) (as applicable) and is paid in accordance therewith, payment thereof shall be the sole and exclusive remedy of Parent and Merger Sub, in the case of a fee paid pursuant to Section 6.08(b), or the Company, in the case of a fee paid pursuant to Section 6.08(c), and, in either case, such party’s respective subsidiaries, stockholders, affiliates, officers, directors, employees and Representatives against the other party and any of its directors, officers, employees, Representatives or affiliates with respect to (i) any loss or damage suffered, directly or indirectly, as a result of the failure of any Transaction to be consummated, (ii) the termination of this Agreement, (iii) any liabilities or obligations arising under this Agreement, or (iv) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement. The parties hereto acknowledge and agree that in no event shall either party be required to pay a fee due under Section 6.08(b) or Section 6.08(c) on more than one occasion, whether or not such fee may be payable under more than one provision of this Agreement at the same or at different times or upon the occurrence of different events. The Company and Parent acknowledge and agree that the agreements contained in this Section 6.08 are an integral part of the Transactions, and that, without these agreements, neither the Company nor Parent would enter into this Agreement and that the Termination Fee and the Reverse Termination Fee, as the case may be, is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub or the Company, as the case may be, in circumstances in which such Termination Fee or Reverse Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement, which amount would otherwise be impossible to calculate with precision.

Office Depot/OfficeMax (FTC 2013)

(g)            Reverse Break Fees.  N/A.

Pinnacle Entertainment/Ameristar Casinos (FTC 2013)

(g)     Reverse Break Fees.  § 7.3(d)-(f)

If this Agreement is terminated: …(ii) by the Company or Parent pursuant to (A) Section 7.1(b)(i) due to the failure of the condition set forth in Section 6.1(d), or (B) Section 7.1(b)(ii); then, in any such case, Parent will pay to the Company, at the time specified in the next sentence, a termination fee of $85,000,000 in cash (the “Reverse Termination Fee”). In the case of termination of this Agreement by the Company pursuant to Section 7.1(b)(i), Section 7.1(b)(v) or Section 7.1(c)(iii) under the circumstances set forth in Section 7.3(d)(i) (other than in the event of a Company Causation Exception), or by the Company pursuant to Section 7.1(b)(i) under the circumstances set forth in Section 7.3(d)(i) or pursuant to Section 7.1(b)(ii), the Reverse Termination Fee will be paid by Parent as promptly as practicable, but in any event no later than two Business Days, after such termination, and in the case of termination of this Agreement by Parent pursuant to Section 7.1(b)(i) or Section 7.1(b)(v) under the circumstances set forth in Section 7.3(d)(i), or by Parent pursuant to Section 7.1(b)(i) under the circumstances set forth in Section 7.3(d)(ii) or pursuant to Section 7.1(b)(ii), the Reverse Termination Fee will be paid by Parent prior to or simultaneous with such termination.

                        (e) Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated and the Reverse Termination Fee is payable to the Company pursuant to Section 7.3(d), then, in such instances, the Company’s right to receive the Reverse Termination Fee: (i) shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company or any of its Affiliates in connection with this Agreement, the Debt Financing and Debt Financing Commitment, and the transactions contemplated hereby and thereby; and (ii) shall be the sole and exclusive remedy of the Company and its Affiliates against the Parent and its Subsidiaries (including the other Parent Entities), the Parent Financing Sources and any of their respective former, current, or future general or limited partners, stockholders, managers, members, directors, officers, affiliates, employees, representatives or agents (“Parent Related Parties”) for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or the failure of the Merger to be consummated, and none of the Parent Entities, the Parent Financing Sources or any of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. In the event of any Financing Failure, the Parent Financing Sources will not have any liability of any nature (for any breach of this Agreement or of the Debt Financing Commitment) to the Company or any of its Subsidiaries or to any stockholder or Affiliate of the Company or any of its Subsidiaries. The parties agree that the Reverse Termination Fee (whether or not payable due to a Company Causation Exception) and the agreements contained in Section 7.3(d) are an integral part of the Merger and that the Reverse Termination Fee (whether or not payable due to a Company Causation Exception) constitutes liquidated damages and not a penalty. In addition, notwithstanding anything to the contrary contained in this Agreement, except for Parent’s obligation to pay to the Company the Reverse Termination Fee if and when such Reverse Termination Fee becomes payable by Parent to the Company pursuant to Section 7.3(d): (A) neither Parent, HoldCo, Merger Sub nor any other Parent Related Parties will have any liability (1) for any inaccuracy in any representation or warranty set forth in Section 4.7 or any other representation or warranty relating to the Debt Financing (regardless of whether such representation or warranty refers specifically to the Debt Financing), or (2) any breach of any of the Financing Covenants; and (B) in the event of any Financing Failure, none of Parent, its Subsidiaries (including the other Parent Entities), the Parent Financing Sources or any of Parent Related Parties will have any liability of any nature (for any breach of this Agreement or any breach in connection with the Debt Financing or Debt Financing Commitment) to the Company or any of its Subsidiaries or to any stockholder or Affiliate of the Company or any of its Subsidiaries. Without limiting the generality of the foregoing and notwithstanding anything to the contrary contained in this Agreement, following the termination of this Agreement, in no event will the Company or any of its Subsidiaries (and the Company will ensure that the Company’s and its Subsidiaries’ and their respective controlled Affiliates do not) seek to recover any money damages or losses, or seek to pursue any other recovery, judgment, damages or remedy (including any equitable remedy) of any kind, in connection with any inaccuracy or breach of the type referred to in the clause (A) above or in connection with any Financing Failure (except that the Company may seek to recover the Reverse Termination Fee if and when such Reverse Termination Fee becomes payable by Parent to the Company pursuant to Section 7.3(d).

                        (f) Each party hereto acknowledges that the agreements contained in Section 7.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other parties hereto would not enter into this Agreement; accordingly, if a party fails promptly to pay any amounts due pursuant to Section 7.3, and, in order to obtain such payment, the other party commences a suit that results in a judgment against such party for the amounts set forth in Section 7.3, such party shall pay other party its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts due pursuant to the applicable provisions of this Section 7.3 from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made.

Sysco/US Foods (FTC 2014)

(g)            Reverse Break Fees.  § 8.3. Effect of Termination; Termination Fee.

(a) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e)(ii) as a result of an order, decree, ruling or other action under Competition Laws or Section 8.1(b) and all of the conditions to Closing set forth in Article VI and Article VII (other than (i) the conditions set forth in Section 6.3 and Section 7.3 and (ii) those other conditions that, by their nature, cannot be satisfied until the Closing Date, but, in the case of clause (ii), which conditions would be capable of satisfaction if the Closing Date were to occur on the date of such termination) have been satisfied or waived on or prior to the date of such termination, then Parent shall pay to the Company a fee of $300,000,000 (the “Reverse Termination Fee”) (which fee shall be payable within two (2) business days after written notice of such termination, by wire transfer of immediately available funds to an account designated in writing by the Company). If Parent fails to timely pay the Reverse Termination Fee when due pursuant to this Section 8.3, Parent shall pay to the Company interest on such amount at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made through the date such payment was actually received. The Company agrees that in the event that the Reverse Termination Fee is paid to the Company pursuant to this Section 8.3, (i) the payment of such Reverse Termination Fee shall be the sole and exclusive remedy of the Company, its equityholders and all of their Affiliates against Parent, the Merger Subs or any of their directors, officers and other Affiliates for, and (ii) in no event will the Company, its equityholders or any of their Affiliates be entitled to recover any other money damages or any other remedy based on a claim in law or equity with respect to, (1) any loss suffered as a result of the failure of the Mergers to be consummated, (2) the termination of this Agreement, (3) any liabilities or obligations arising under this Agreement, or (4) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and upon payment to the Company of the Reverse Termination Fee in accordance with this Section 8.3(a), neither Parent, the Merger Subs nor any of their directors, officers or other Affiliates shall have any further liability or obligation to the Company, its equityholders or any of their Affiliates relating to or arising out of this Agreement or the transactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, in any circumstance in which the Reverse Termination Fee is paid (whether due to any willful, intentional or unintentional breach by Parent or a Merger Sub, or for any other reason), then the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, the Merger Subs or any of their Affiliates, equityholders, controlling persons, stockholders, directors, officers, employees, agents or other representatives (the “Parent Related Parties”) for any breach, loss or damage shall be to terminate this Agreement and receive payment of the Reverse Termination Fee, only to the extent provided for by this Section 8.3(a), and upon payment of such amount in accordance with this Section 8.3(a) no Person shall have any rights or claims against any of the Parent Related Parties under this Agreement, in respect of any oral representations made or alleged to be made in connection herewith, in respect of the transactions contemplated hereby, whether at law or equity, in contract, in tort or otherwise, and none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or in respect of the transactions contemplated hereby or thereby. Nothing herein shall limit the Company’s rights under Section 8.4 prior to the termination of this Agreement or the Company’s right to seek payment of and be paid the Reverse Termination Fee in accordance with this Agreement if the Company has pursued alternative remedies hereunder in lieu of pursuing the Reverse Termination Fee and the Company ceases to pursue such remedies without having obtained them.

                        (b) Each of the Company, Parent and each Merger Sub acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Reverse Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company and its Affiliates in the circumstances in which such fee is paid for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, and (iii) without these agreements, the parties would not enter into this Agreement.

                        (c) In the event of termination of this Agreement by either the Company or Parent as provided in Section 8.1, this Agreement will forthwith become void and have no further force or effect, without any Liability (other than, except as otherwise provided in this Section 8.3, with respect to fraud or willful breach or as set forth in Section 8.2 or this Section 8.3) on the part of Parent, any Merger Sub or the Company. The provisions of Section 8.2, this Section 8.3, Section 9.7, Section 9.11, Section 9.12, Section 9.15 and Section 9.16 and will survive any termination hereof.

Tyson Foods/Hillshire Brands (DOJ 2014)

(g)     Reverse Break Fees.  N/A


Verso Paper/Newpage Holdings (DOJ 2014-2015)

(g)               Reverse Break Fees. N/A.

Western Digital/Hitachi (FTC 2012)

(g)                       Reverse Break Fees.  N/A


Zillow/Trulia (FTC 2014-2015)

(g)       Reverse Break Fees. § 8.03 (c): . . . (iii) in the event that this Agreement is terminated by, (A) either Zillow or Trulia pursuant to Section 8.01(c) in connection with any injunction, order, decree or ruling related to the HSR Act, any other applicable Competition Laws or related consents or approvals, (B) either Zillow or Trulia pursuant to Section 8.01(b) and at the time of such termination, any of the conditions set forth in Section 7.01(c), Section 7.01(d) or Section 7.02(e) shall not have been satisfied, or (C) Trulia pursuant to Section 8.01(i) due to a material breach by Zillow of its obligations under Section 6.10, then Zillow shall pay to Trulia promptly (but in any event no later than one business day after such termination) a fee of $150 million (the “Regulatory Fee”), which amount shall be payable in immediately available funds (the payment of the Regulatory Fee by Zillow under this Section 8.03(c)(iii) shall not obviate the need for Trulia to pay the Termination Fee under Section 8.03(b)(iii) if the conditions for payment thereof have been satisfied).