Common use of Break Fee Clause in Contracts

Break Fee. (1) Subject to Section 6.2(b)(2) below, in the event (i) this Agreement is terminated other than pursuant to Section 6.2(a)(i) and (ii) the Company consummates an Alternative Financing on or prior to March 27, 2017, then the Company shall pay the Investors an aggregate cash payment equal to $5.0 million by wire transfer of immediately available funds immediately upon consummation of such Alternative Financing (such fee payable pursuant to this Section 6.2(b)(1), the “Break Fee”). (2) In the event this Agreement is terminated by the Investors pursuant to Section 6.2(a)(iii)(3), the Company shall pay the Investors a fee equal to $4.0 million with (i) 75% of such fee payable in cash by wire transfer of immediately available funds and (ii) 25% of such fee payable in shares of common equity, in each case within three business days of the such termination (such fee payable pursuant to this Section 6.2(b)(2), the “Minimum Condition Break Fee”). Notwithstanding the foregoing, in no event shall the Break Fee or the Minimum Condition Break Fee be owed if, at the time of such termination, (i) either of the Investors is in breach of this Agreement after written notice of such breach has been delivered to both Investors and the breaching Investor fails to cure such breach within five (5) Business Days after receipt of such notice; or (ii) any injunction, judgment, decree or order shall have been entered, or any statute, rule, regulation or executive order shall have been promulgated or enacted, which prevents or prohibits the consummation of the Transactions by the Investors, declares the Transactions unlawful or causes the Transactions to be rescinded. In the event the Company pays the Break Fee pursuant to Section 6.2(b)(1) then in no event shall the Company be required to pay the Minimum Condition Break Fee pursuant to Section 6.2(b)(2). In the event the Company pays the Minimum Condition Break Fee pursuant to Section 6.2(b)(2) then in no event is the Company required to pay the Break Fee pursuant to Section 6.2(b)(1); provided, however, that in the event the Company consummates an Alternative Financing on or prior to March 27, 2017, the Company shall pay to the Investors a fee in an amount equal to $1 million by wire transfer of immediately available funds immediately upon consummation of such Alternative Financing.

Break Fee. (1a) Subject to Section 6.2(b)(2) below, in the event If: (i) Cedara shall terminate this Agreement is terminated other than pursuant to Section 6.2(a)(i) and section 6.3(c)(iv); (ii) Merge shall terminate this Agreement pursuant to section 6.3(c)(iii); or (iii) either Cedara or Merge shall terminate this Agreement pursuant to section 6.3(c)(vii) in circumstances where Cedara shareholder approval has not been obtained at the Company consummates Cedara Meeting, and (x) a bona fide Cedara Acquisition Proposal has been made by any person other than a Merge Party prior to Cedara Meeting and not withdrawn more than five days prior to the vote of Cedara Shareholders and (y) Cedara enters into an Alternative Financing on agreement with respect to a Cedara Acquisition Proposal, or a Cedara Acquisition Proposal is consummated, after the date hereof and prior to the expiration of twelve months following termination of this Agreement; then in any such case Cedara shall pay to Merge US$7,000,000 in immediately available funds to an account designated by Merge. Such payment shall be due (A) in the case of a termination specified in clause (i), prior to the termination of this Agreement, (B) in the case of a termination specified in clause (ii), within five Business Days after written notice of termination by Merge or (C) in the case of a termination specified in clause (iii), at or prior to March 27, 2017, then the Company shall pay earlier of the Investors an aggregate cash payment equal to $5.0 million by wire transfer entering into of immediately available funds immediately upon the agreement and the consummation of such Alternative Financing (such fee payable the transaction referred to therein. Cedara shall not be obligated to make more than one payment pursuant to this Section 6.2(b)(1), the “Break Fee”section 6.4(a). (2b) In the event this Agreement is terminated by the Investors pursuant to Section 6.2(a)(iii)(3), the Company shall pay the Investors a fee equal to $4.0 million with If: (i) 75% Merge shall terminate this Agreement pursuant to section 6.3(c)(vi); (ii) Cedara shall terminate this Agreement pursuant to section 6.3(c)(v); or (iii) either Cedara or Merge shall terminate this Agreement pursuant to section 6.3(c)(vii) in circumstances where Merge shareholder approval has not been obtained at the Merge Meeting, and (x) a bona fide Merge Acquisition Proposal has been made by any person prior to the Merge Meeting and not withdrawn more than five days prior to the vote of the holders of Merge Common Shares and (y) Merge enters into an agreement with respect to a Merge Acquisition Proposal, or a Merge Acquisition Proposal is consummated, after the date hereof and prior to the expiration of twelve months following termination of this Agreement; then in any such fee payable case Merge shall pay to Cedara US$7,000,000 in cash by wire transfer of immediately available funds and to an account designated by Cedara. Such payment shall be due (A) in the case of a termination specified in clause (i), prior to the termination of this Agreement, (B) in the case of a termination specified in clause (ii) 25% of such fee payable in shares of common equity, in each case within three business days of the such termination (such fee payable pursuant to this Section 6.2(b)(2), the “Minimum Condition Break Fee”). Notwithstanding the foregoing, in no event shall the Break Fee or the Minimum Condition Break Fee be owed if, at the time of such termination, (i) either of the Investors is in breach of this Agreement within five Business Days after written notice of such breach has been delivered to both Investors and the breaching Investor fails to cure such breach within five (5) Business Days after receipt of such notice; termination by Cedara or (iiC) any injunctionin the case of a termination specified in clause (iii), judgment, decree at or order shall have been entered, or any statute, rule, regulation or executive order shall have been promulgated or enacted, which prevents or prohibits prior to the earlier of the entering into of the agreement and the consummation of the Transactions by the Investors, declares the Transactions unlawful or causes the Transactions transaction referred to therein. Merge shall not be rescinded. In the event the Company pays the Break Fee obligated to make more than one payment pursuant to Section 6.2(b)(1this section 6.4(b). (c) If the holders of Cedara Common Shares shall fail to approve the Arrangement at the Cedara Meeting, then at 11:00 a.m., Milwaukee, Wisconsin time, on the first Business Day following Cedara Meeting, Cedara shall reimburse Merge for the Merge Parties’ out-of-pocket costs and expenses in no event connection with the transaction contemplated by this Agreement, not to exceed US$1.5 million, which shall the Company be required to pay the Minimum Condition Break Fee pursuant to Section 6.2(b)(2). In the event the Company pays the Minimum Condition Break Fee pursuant to Section 6.2(b)(2) then paid in no event is the Company required to pay the Break Fee pursuant to Section 6.2(b)(1); provided, however, that in the event the Company consummates an Alternative Financing on or prior to March 27, 2017, the Company shall pay to the Investors a fee in an amount equal to $1 million by wire transfer of immediately available funds to an account designated by Merge. If the holders of Merge Common Shares shall fail to approve the Merger at the Merge Meeting, then at 11:00 a.m., Milwaukee, Wisconsin time, on the first Business Day following the Merge Meeting, Merge shall reimburse Cedara for Cedara’s out-of-pocket costs and expenses in connection with the transaction contemplated by this Agreement, not to exceed US$1.5 million, which shall be paid in immediately upon consummation of such Alternative Financingavailable funds to an account designated by Cedara.

Break Fee. (1a) Subject to Section 6.2(b)(2) below, in the event If: (i) Abatis shall terminate this Agreement is terminated other than pursuant to Section 6.2(a)(i) and 7.3(c)(iv); (ii) the Company consummates an Alternative Financing on Redback Parties shall terminate this Agreement pursuant to Section 7.3(c)(iii); (iii) either Abatis or prior the Redback Parties shall terminate this Agreement pursuant to March 27Section 7.3(c)(v); or (iv) the Redback Parties shall terminate this Agreement pursuant to Section 7.3(a) in respect of the non-satisfaction of either of the conditions contained in Sections 6.2(a) or (b), 2017other than a termination pursuant to Section 7.3(a) in respect of the non-satisfaction of the condition contained in section 6.2(b) relating to a representation or warranty which is true and correct as of the date of this Agreement but which, through no fault of Abatis after the date of this Agreement, is not true and correct in all material respects as of the Effective Date; then the Company in any such case Abatis shall pay to Redback the Investors an aggregate cash payment equal to sum of $5.0 million by wire transfer of 24,000,000 in immediately available funds immediately upon consummation to an account designated by Redback. Such payment shall be due and payable: (A) in the case of such Alternative Financing a termination specified in clause (such fee payable i), prior to the termination of this Agreement; (B) in the case of a termination specified in clause (ii), within five Business Days after written notice of termination by the Redback Parties; (C) in the case of a termination specified in clause (iii), within five Business Days after written notice of the termination contemplated therein by either Abatis or the Redback Parties; or (D) in the case of a termination specified in clause (iv), within five Business Days after written notice of termination by Redback. Abatis shall not be obligated to make more than one payment pursuant to this Section 6.2(b)(1), the “Break Fee”7.4(a). (2b) In the event If Abatis shall terminate this Agreement is terminated by the Investors pursuant to Section 6.2(a)(iii)(37.3(b) in respect of the non-satisfaction of either of the conditions contained in Section 6.3(a) or (b), other than a termination pursuant to Section 7.3(b) in respect of the Company non-satisfaction of the condition contained in Section 6.3(b) relating to a representation or warranty which is true and correct as of the date of this Agreement but which, through no fault of the Redback Parties, is not true and correct in all material respects as of the Effective Date after the date of this Agreement, then in any such case Redback shall pay to Abatis the Investors a fee equal to sum of $4.0 million with (i) 75% of such fee payable 24,000,000 in cash by wire transfer of immediately available funds to an account designated by Abatis. Such payment shall be due and (ii) 25% payable within five Business Days after written notice of such fee payable in shares of common equity, in each case within three business days of the such termination (such fee payable by Abatis. Redback shall not be obligated to make more than one payment pursuant to this Section 6.2(b)(27.4(b), the “Minimum Condition Break Fee”). Notwithstanding the foregoing, in no event shall the Break Fee or the Minimum Condition Break Fee be owed if, at the time of such termination, (i) either of the Investors is in breach of this Agreement after written notice of such breach has been delivered to both Investors and the breaching Investor fails to cure such breach within five (5) Business Days after receipt of such notice; or (ii) any injunction, judgment, decree or order shall have been entered, or any statute, rule, regulation or executive order shall have been promulgated or enacted, which prevents or prohibits the consummation of the Transactions by the Investors, declares the Transactions unlawful or causes the Transactions to be rescinded. In the event the Company pays the Break Fee pursuant to Section 6.2(b)(1) then in no event shall the Company be required to pay the Minimum Condition Break Fee pursuant to Section 6.2(b)(2). In the event the Company pays the Minimum Condition Break Fee pursuant to Section 6.2(b)(2) then in no event is the Company required to pay the Break Fee pursuant to Section 6.2(b)(1); provided, however, that in the event the Company consummates an Alternative Financing on or prior to March 27, 2017, the Company shall pay to the Investors a fee in an amount equal to $1 million by wire transfer of immediately available funds immediately upon consummation of such Alternative Financing.

Break Fee. (1a) Subject to Section 6.2(b)(2) below, in the event If: (i) Target shall terminate this Agreement is terminated other than pursuant to Section 6.2(a)(i) and 7.3(c)(iv); (ii) the Company consummates an Alternative Financing on Purchaser Parties shall terminate this Agreement pursuant to Section 7.3(c)(iii); (iii) either Target or prior the Purchaser Parties shall terminate this Agreement pursuant to March 27Section 7.3(c)(v); or (iv) the Purchaser Parties shall terminate this Agreement pursuant to Section 7.3(a) in respect of the non-satisfaction of either of the conditions contained in Sections 6.2(a) or (b), 2017other than a termination pursuant to Section 7.3(a) in respect of the non-satisfaction of the condition contained in Section 6.2(b) relating to a representation or warranty which is true and correct as of the date of this Agreement but which, through no fault of Target after the date of this Agreement, is not true and correct in all material respects as of the Effective Date (except, for greater certainty, to the extent such representations and warranties speak as of a specified date which is earlier than the date of this Agreement or except as affected by transactions or changes in the ordinary course of business or otherwise contemplated or permitted by this Agreement or otherwise consented to by Purchaser); then the Company in any such case Target shall pay to Purchaser the Investors an aggregate cash payment equal to sum of $5.0 million by wire transfer of 10,000,000 in immediately available funds immediately upon consummation to an account designated by Purchaser. Such payment shall be due and payable: (A) in the case of such Alternative Financing a termination specified in clause (such fee payable i), prior to the termination of this Agreement; (B) in the case of a termination specified in clause (ii), within five Business Days after written notice of termination by the Purchaser Parties; (C) in the case of a termination specified in clause (iii), within five Business Days after written notice of the termination contemplated therein by either Target or the Purchaser Parties; or (D) in the case of a termination specified in clause (iv), within five Business Days after written notice of termination by Purchaser. Target shall not be obligated to make more than one payment pursuant to this Section 6.2(b)(1), the “Break Fee”7.4(a). (2b) In the event If Target shall terminate this Agreement is terminated by the Investors pursuant to Section 6.2(a)(iii)(37.3(b) in respect of the non-satisfaction of either of the conditions contained in Section 6.3(a) or (b), other than a termination pursuant to Section 7.3(b) in respect of the Company non-satisfaction of the condition contained in Section 6.3(b) relating to a representation or warranty which is true and correct as of the date of this Agreement but which, through no fault of the Purchaser Parties, is not true and correct in all material respects as of the Effective Date after the date of this Agreement, then in any such case Purchaser shall pay to Target the Investors a fee equal to sum $4.0 million with (i) 75% of such fee payable 10,000,000 in cash by wire transfer of immediately available funds to an account designated by Target. Such payment shall be due and (ii) 25% payable within five Business Days after written notice of such fee payable in shares of common equity, in each case within three business days of the such termination (such fee payable by Target. Purchaser shall not be obligated to make more than one payment pursuant to this Section 6.2(b)(27.4(b), the “Minimum Condition Break Fee”). Notwithstanding the foregoing, in no event shall the Break Fee or the Minimum Condition Break Fee be owed if, at the time of such termination, (i) either of the Investors is in breach of this Agreement after written notice of such breach has been delivered to both Investors and the breaching Investor fails to cure such breach within five (5) Business Days after receipt of such notice; or (ii) any injunction, judgment, decree or order shall have been entered, or any statute, rule, regulation or executive order shall have been promulgated or enacted, which prevents or prohibits the consummation of the Transactions by the Investors, declares the Transactions unlawful or causes the Transactions to be rescinded. In the event the Company pays the Break Fee pursuant to Section 6.2(b)(1) then in no event shall the Company be required to pay the Minimum Condition Break Fee pursuant to Section 6.2(b)(2). In the event the Company pays the Minimum Condition Break Fee pursuant to Section 6.2(b)(2) then in no event is the Company required to pay the Break Fee pursuant to Section 6.2(b)(1); provided, however, that in the event the Company consummates an Alternative Financing on or prior to March 27, 2017, the Company shall pay to the Investors a fee in an amount equal to $1 million by wire transfer of immediately available funds immediately upon consummation of such Alternative Financing.