Common use of Break-Up Fee and Expense Reimbursement Clause in Contracts

Break-Up Fee and Expense Reimbursement. (a) In the event that after the date hereof and prior to the receipt of Nyer Shareholder Approval, Seller or Nyer receives an unsolicited bona fide written proposal for a transaction by a third party or a tender offer initiated by a third party, in each case, pursuant to which the economic consideration shall be at least $350,000.00 greater than the sum of (i) $17,750,000.00, plus (ii) the Prepaid Rent Amount and plus (iii) the Parata Equipment Amount (an “Alternate Transaction”), Seller or Nyer may furnish non-public information to, and negotiate with, such third party; provided however, that Seller or Nyer provide Buyer with written notice as provided below and shall pay to Buyer (i) a break-up fee (the “Break-Up Fee”) in the amount of $300,000.00 and (ii) an amount equal to all of the actual out-of-pocket expenses, up to a total of $200,000.00, incurred by Buyer or its Affiliates in connection with the transactions contemplated by this Agreement (the “Expense Reimbursement”), which such amounts shall be paid to Buyer in accordance with Section 11.2(b). Nothing in this Section 8.17 shall prohibit the Board of Directors of Nyer from refusing to make, withdrawing, qualifying, conditioning, or modifying its recommendation of the transactions contemplated by this Agreement if, prior to the Closing Date, there exists an Alternate Transaction and the Board of Directors of Nyer determines in good faith that any failure to do so would be inconsistent with the best interests of the shareholders of Nyer; provided, however, that the Board of Directors of Nyer has provided Buyer with five business days prior written notice of its intent to effect such withdrawal, modification, qualification, conditioning or refusal to recommend (which such notice shall include reasonable details regarding the cause for, and the nature of, such withdrawal, modification, qualification, conditioning or refusal to recommend). If Seller or its Affiliate enters into such Alternate Transaction, this Agreement shall terminate but for the confidentiality obligations and the obligation of Seller to pay the Break-Up Fee and Expense Reimbursement as provided herein. The Break-Up Fee and Expense Reimbursement are intended to compensate Buyer and its Affiliates for the time and expense dedicated to this transaction.

Break-Up Fee and Expense Reimbursement. (a) In Sellers hereby agree, in the event that after the date hereof and prior to the receipt of Nyer Shareholder Approval, Seller or Nyer receives an unsolicited bona fide written proposal for a transaction by a third party or a tender offer initiated by a third party, in each case, pursuant to which the economic consideration shall be at least $350,000.00 greater than the sum of Sellers (i) $17,750,000.00accept a bid, plus for any of the Acquired Assets, other than that of Purchaser, as the highest or otherwise best offer (an "AUCTION TRANSACTION") or (ii) the Prepaid Rent Amount and plus sell, transfer, leases or otherwise dispose, directly or indirectly, to one or more third parties other than Purchaser (iiii.e., not as part of a standalone restructuring) the Parata Equipment Amount including through an asset sale, stock sale, merger, reorganization or other similar transaction (an “Alternate Transaction”by Sellers or their Affiliates or otherwise), Seller all or Nyer may furnish non-public information to, and negotiate with, a substantial portion of the Acquired Assets (or agree to do any of the foregoing) in a transaction or series of transactions (including in any such transaction or series of transactions sponsored by one or more third party; provided however, that Seller or Nyer provide Buyer with written notice as provided below and shall pay to Buyer parties) within six (6) months from the completion of the auction contemplated by the Bidding Procedures (any of clause (i) or (ii) being, an "ALTERNATIVE TRANSACTION"), to pay to Purchaser, upon the closing of the Alternative Transaction, a break-up fee (the “"BREAK-UP FEE") (or if such Alternative Transaction does not close and the applicable transaction agreement(s) is terminated, Sellers shall pay to Purchaser the Break-Up Fee”Fee in an amount equal to the lesser of $5,000,000 and the amount of any deposit made by the prospective party to the Alternative Transaction that is retained by Sellers in connection with such termination) in the amount of $300,000.00 and (ii) an amount equal to all of the actual out-of-pocket expenses, up to a total of $200,000.00, incurred by Buyer or its Affiliates in connection with the transactions contemplated by this Agreement (the “Expense Reimbursement”), which such amounts shall be paid to Buyer in accordance with Section 11.2(b). Nothing in this Section 8.17 shall prohibit the Board of Directors of Nyer from refusing to make, withdrawing, qualifying, conditioning, or modifying its recommendation of the transactions contemplated by this Agreement if, prior to the Closing Date, there exists an Alternate Transaction and the Board of Directors of Nyer determines in good faith that any failure to do so would be inconsistent with the best interests of the shareholders of Nyer; provided, however, that the Board of Directors of Nyer has provided Buyer with five business days prior written notice of its intent to effect such withdrawal, modification, qualification, conditioning or refusal to recommend (which such notice shall include reasonable details regarding the cause for, and the nature of, such withdrawal, modification, qualification, conditioning or refusal to recommend). If Seller or its Affiliate enters into such Alternate Transaction, this Agreement shall terminate but for the confidentiality obligations and the obligation of Seller to pay the Break-Up Fee and Expense Reimbursement as provided herein. The Break-Up Fee and Expense Reimbursement are intended 5,000,000 to compensate Buyer and its Affiliates Purchaser for the time and expense dedicated to this transactiontransaction and the value added by Purchaser in (1) establishing a bid standard or minimum for other bidders with respect to the Acquired Assets, (2) placing the Acquired Assets in a sales configuration mode attracting other bidders to the Auction and (3) for serving, by its name and its expressed interest, as a catalyst for other potential or actual bidders for the Acquired Assets; provided, however, that in the event the Bankruptcy Court does not approve the provisions in this Agreement relating to the Break-Up Fee, the Purchase Price pursuant to SECTION 2.03 shall be reduced to $206,300,000 and the provisions set forth in SECTION 5.09(b) shall apply. Sellers further agree that any Break-Up Fee will constitute an administrative priority claim against Sellers' estate under sections 503(b) and 507(a)(1) of the Bankruptcy Code.

Break-Up Fee and Expense Reimbursement. (a) In the event that after Seller (i) accepts a Bid, other than that of Purchaser, as the highest or best offer (an "Auction Transaction") or (ii) sells, transfers, leases or otherwise disposes directly or indirectly, including through an asset sale, stock sale, merger, reorganization or other similar transaction, of all or substantially all or a material portion of the Acquired Assets (or agrees to do any of the foregoing) in a transaction or series of transactions to a party or parties other than Purchaser within twelve months from the date hereof and prior to the receipt (either of Nyer Shareholder Approval, Seller or Nyer receives an unsolicited bona fide written proposal for a transaction by a third party or a tender offer initiated by a third party, in each case, pursuant to which the economic consideration shall be at least $350,000.00 greater than the sum of clause (i) $17,750,000.00, plus or (ii) the Prepaid Rent Amount and plus (iii) the Parata Equipment Amount (being, an “Alternate "Alternative Transaction”"), Seller or Nyer may furnish non-public information to, and negotiate with, such third party; provided however, that Seller or Nyer provide Buyer with written notice as provided below and shall pay to Buyer Purchaser (i) an amount equal to its reasonable, actual out-of-pocket costs and expenses (including, without limitation, expenses of counsel, expenses of financial advisor and expenses of other consultants and the HSR Act filing fee) incurred by Purchaser in connection with this Agreement and the transactions contemplated hereby, not to exceed $1,000,000 (the "Expense Reimbursement"), and (ii) a break-up fee (the “Break-Up Fee”) in the amount of $300,000.00 5,000,000 which represents Purchaser's fee for its work in (x) establishing a bid standard or minimum for other bidders, (y) placing estate property in a sales configuration mode attracting other bidders to the Auction and (iiz) an amount equal to all of the actual out-of-pocket expensesfor serving, up to by its name and its expressed interest, as a total of $200,000.00, incurred by Buyer or its Affiliates in connection with the transactions contemplated by this Agreement catalyst for other bidders (the “Expense Reimbursement”"Break-Up Fee"), which such amounts shall be paid to Buyer in accordance with Section 11.2(b). Nothing in this Section 8.17 shall prohibit the Board of Directors of Nyer from refusing to make, withdrawing, qualifying, conditioning, or modifying its recommendation of the transactions contemplated by this Agreement if, prior to the Closing Date, there exists an Alternate Transaction and the Board of Directors of Nyer determines in good faith that any failure to do so would be inconsistent with the best interests of the shareholders of Nyer; provided, however, that in no event shall the Board of Directors of Nyer has provided Buyer with five business days prior written notice of its intent to effect such withdrawal, modification, qualification, conditioning Expense Reimbursement or refusal to recommend (which such notice shall include reasonable details regarding the cause for, and the nature of, such withdrawal, modification, qualification, conditioning or refusal to recommend). If Seller or its Affiliate enters into such Alternate Transaction, this Agreement shall terminate but for the confidentiality obligations and the obligation of Seller to pay the Break-Up Fee and Expense Reimbursement as provided hereinbe payable to Purchaser (x) if Purchaser terminates this Agreement (other than in the event of an Auction Transaction) for any reason other than the willful breach by Sellers of any representation, warranty, covenant or agreement set forth in this Agreement, or (y) if this Agreement is terminated by Seller pursuant to Section 7.1(c) or 7.1(d). The Break-Up Fee and the Expense Reimbursement are intended shall be paid as an administrative priority of Seller under Section 503(b)(1) of the Bankruptcy Code upon the earlier to compensate Buyer occur of the closing of the Alternative Transaction and its Affiliates for the time and expense dedicated to this transactionconsummation of a plan of reorganization.

Break-Up Fee and Expense Reimbursement. (a) In the event that after this Agreement is terminated by Purchaser pursuant to any of the date hereof and prior rights of termination granted to Purchaser under subsections 9.2(ii)-(iii) or 9.2(vi), or if the Seller terminates this Agreement pursuant to the receipt second paragraph of Nyer Shareholder ApprovalSection 9.3 hereof, Seller or Nyer receives an unsolicited bona fide written proposal for (each of subsections 9.2(ii)-(iii), 9.2(vi) and the second paragraph of Section 9.3 hereof, a transaction by a third party or a tender offer initiated by a third party, in each case, pursuant to which the economic consideration shall be at least $350,000.00 greater than the sum of (i) $17,750,000.00, plus (ii) the Prepaid Rent Amount and plus (iii) the Parata Equipment Amount (an “Alternate TransactionSpecified Termination Event”), Seller provided that a breach by Purchaser of any material term or Nyer may furnish non-public information to, and negotiate with, such third party; provided however, that Seller or Nyer provide Buyer with written notice as provided below and shall pay to Buyer (i) a break-up fee (the “Break-Up Fee”) in the amount provision of $300,000.00 and (ii) an amount equal to all of the actual out-of-pocket expenses, up to a total of $200,000.00, incurred by Buyer or its Affiliates in connection with the transactions contemplated by this Agreement (was not the “Expense Reimbursement”), which such amounts shall be paid to Buyer in accordance with Section 11.2(b). Nothing in this Section 8.17 shall prohibit the Board material cause of Directors of Nyer from refusing to make, withdrawing, qualifying, conditioning, or modifying its recommendation of the transactions contemplated by this Agreement if, prior a material contributing factor to the Closing DateSpecified Termination Event, there exists an Alternate Transaction and the Board of Directors of Nyer determines in good faith that any failure to do so would be inconsistent with the best interests of the shareholders of Nyer; provided, however, that the Board of Directors of Nyer has provided Buyer with five business days prior written notice of its intent to effect such withdrawal, modification, qualification, conditioning or refusal to recommend (which such notice Sellers shall include reasonable details regarding the cause for, and the nature of, such withdrawal, modification, qualification, conditioning or refusal to recommend). If Seller or its Affiliate enters into such Alternate Transaction, this Agreement shall terminate but for the confidentiality obligations and the obligation of Seller to pay the Break-Up Fee and the Expense Reimbursement as provided hereinto the Purchaser or its designee not later than three Business Days following any Specified Termination Event; provided, however, to the extent the Sellers shall have used commercially reasonable efforts seeking the entry of the Confirmation Order by July 31 2011, and notwithstanding such efforts, each or all of the Sellers did not cause (or directed to cause), directly or indirectly, the action or contribute, in anyway, to the reason or circumstances that resulted in the failure of the Bankruptcy Court to enter the Confirmation Order by July 31, 2011, then to the extent Purchaser chooses to terminate this Agreement in accordance with Sections 9.4 (ii)-(iii), Seller shall only pay (in accordance with this Section 9.4) to Purchaser the July 31 Expense Reimbursement. The Seller’s obligation to make any payment on account of the Break-Up Fee and the Expense Reimbursement shall have super-priority administrative expense status, senior to all other administrative expense claims (other than Seller’s obligations pursuant to the Xxxxxx DIP Facility and the Five Mile DIP Facility and the DIP Orders (as such terms are intended defined in the Plan), which obligations shall be pari passu with the Seller’s obligation to compensate Buyer pay the Break-Up and its Affiliates for Expense Reimbursement, under Section 364(c)(1) of the time and expense dedicated to this transactionBankruptcy Code, until such payment is made.