Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. In the event that (1) a Definitive Agreement is not successfully negotiated and entered into, or (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination of the Definitive Agreement, as the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is an integral part of the Proposed Transaction and that, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail to pay such amount when due pursuant to this paragraph, and, in order to obtain such payment, suit is commenced, the owing party shall pay reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding Provisions.

Break-Up Fee. In Provided the event that (1) a Definitive Agreement Offeror is not successfully negotiated and entered into, or (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination in breach of its obligations under this Letter pursuant to Paragraph K(ii) or termination of the Definitive Agreement, as the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) if the condition set forth in clause (1) occurs due Board of Directors fails to Tridex recommend to the shareholders of the Corporation that they accept the Offer by the issuance of a directors’ circular; or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) having complied with section 4.1(b) hereof, the condition set forth in clause (2) occurs due to Board of Directors subsequently adversely modifies or withdraws the failure to obtain recommendation made by the approval Board of Directors that shareholders accept the stockholders of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed TransactionOffer; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each Corporation terminates this Agreement pursuant to section 9.1(d) hereof; then, in any such event, in recognition of the parties acknowledges and agrees that the provisions for the payment of break-up fees is an integral part efforts of the Proposed Transaction and thatOfferor in making the Offer, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if the Corporation will pay to the Offeror by wire transfer of same-day funds a break-up fee shall become due and payable by a partyequal to $11 million within three (3) business days of the first of such events to occur, and such party shall fail an amount equal to pay such amount when due the reasonable out-of-pocket expenses and fees incurred by the Offeror including, without limitation, all reasonable fees and expenses payable to lenders, counsel, accountants and advisors to the Offeror (including legal advisors and financial advisors) and all solicitation, translation and printing costs (the “Offeror’s Expenses”). Notwithstanding the foregoing, provided the Offeror is not in breach of any of its material obligations under this Agreement, and without limitation to any other rights or recourses available to the Offeror, if this Agreement is terminated by the Offeror pursuant to this paragraphsection 9.2(d) hereof, and, in order or if the Lock-up Agreement is terminated by the Offeror pursuant to obtain such payment, suit is commencedSection 7.2(b) thereof, the owing party Offeror shall pay reasonable costs be entitled to, and expenses (including reasonable attorneys' fees) in connection with such suitthe Corporation shall forthwith reimburse the Offeror for, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred)Offeror’s Expenses. The obligations of the parties under this paragraph shall survive If, following the termination of this Agreement or the Binding ProvisionsSupport Agreement in accordance with the immediately preceding paragraph and the payment of the Offeror’s Expenses as provided for therein, an offer or proposal is made to the Corporation to enter into a transaction described under Section 4.1(a)(i) or (ii) of this Agreement, and within 9 months of such termination the Corporation enters into a definitive agreement to consummate, or consummates, such a transaction, the Offeror shall be entitled to payment of the break-up fee of $11 million within 3 business days of date a definitive agreement in respect of such a transaction is entered into.

Break-Up Fee. In the event SeaMED agrees to pay Plexus, (provided that (1) a Definitive Agreement Plexus is not successfully negotiated and entered intothen in material breach of any representation, warranty, covenant or agreement contained in this Agreement) within two (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year business days after the termination of this Letter pursuant to Paragraph K(ii) Agreement (or termination of the Definitive Agreement, such later date as may apply in the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction)ii) below) by wire transfer, the sum of $2,000,000; provided3.2 Million in immediately available funds, howeverplus interest on the amounts owed at the prime rate as announced by Key Bank N.A. in effect from time to time during such period plus two percent (the "BREAK-UP FEE") in the event that following the date of the execution of this Agreement, that no such payment will be required if and at or prior to the termination of this Agreement, any of the following events shall have occurred: (i) Plexus shall have terminated this Agreement pursuant to Section 9.1(c)(v), (vi), (vii) or (viii) hereof; or (ii) if (A) either (y) SeaMED, any of its subsidiaries or any of their Representatives shall have taken any actions pursuant to clause (b) or (c) of the condition proviso set forth in clause Section 3.9.3 or (1z) occurs due an Other Proposal shall have been made to Tridex SeaMED or Sulcus exercising its rights under stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make such an Other Proposal with respect to SeaMED and thereafter this Agreement is terminated by either Plexus or SeaMED pursuant to Section 9.1(c)(iv) or 9.1(d)(iii), respectively, and (B) SeaMED consummates an agreement for an Other Transaction within twelve (12) months after termination of this Agreement, SeaMED shall promptly, but in no event later than the last sentence date of Paragraph Bsuch consummation, (ii) pay to Plexus the condition Break-up Fee. The right to the payment of the fees set forth in clause this Section 3.9.5 shall be the exclusive remedy at law or in equity to which Plexus may be entitled upon termination of this Agreement pursuant to Section 9.1(c)(v), (2vi) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, (vii) hereof. SeaMED acknowledges that the executive officers and directors of Tridex and Sulcus will agree to vote their shares agreements contained in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is this Section 3.9.5 are an integral part of the Proposed Transaction transactions contemplated by this Agreement, and that, without this provisionthese agreements, they Plexus and Acquisition would not have entered enter into this Proposed TransactionAgreement. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail If SeaMED fails to promptly pay such the amount when due pursuant to this paragraph, Section 3.9.5 and, in order to obtain such payment, Plexus commences a suit is commencedwhich results in a judgment against SeaMED for the fee set forth therein, the owing party if Plexus prevails in such suit, SeaMED shall pay to Plexus its reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred)of termination of this Agreement. The obligations agreements contained in this Section 3.9.5 of the parties under this paragraph shall survive the termination Agreement are an integral part of the Binding Provisionsthis Agreement and constitute liquidated damages and not a penalty.

Break-Up Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $750,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that (1) a Definitive after the date of this Agreement is not successfully negotiated and entered into, or (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after prior to the termination of this Letter Agreement, an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Paragraph K(iiSection 7.01(c) or termination Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the Definitive Agreementforegoing Acquisition Proposal), as then Company shall, on the case may be, Sulcus or Tridex closes a transaction relating to earlier of the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex date it enters into such alternative agreement and the date of consummation of such transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction)Buyer the Break-Up Fee, the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, that for purposes of this Section 7.03(a), all references in the executive officers definition of Acquisition Transaction to “15%” shall instead refer to “50%”. (b) Company and directors of Tridex and Sulcus will Buyer each agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is agreements contained in this Section 7.03 are an integral part of the Proposed Transaction transactions contemplated by this Agreement, and that, without this provisionthese agreements, they Buyer would not have entered enter into this Proposed Transaction. AccordinglyAgreement; accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail Company fails promptly to pay such amount when any amounts due pursuant to under this paragraphSection 7.03, and, in order to obtain such payment, suit is commenced, the owing party Company shall pay reasonable interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including reasonable attorneys' feeslegal fees and expenses) reasonably incurred in connection with such suit. (c) Notwithstanding anything to the contrary set forth in this Agreement, together with interest computed on any amounts determined the parties agree that if Company pays or causes to be due and payable pursuant paid to Buyer or to Buyer Bank the Break-Up Fee in accordance with Section 7.03(a), neither Company nor Company Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Company Bank) will have any further obligations or liabilities to Buyer or Buyer Bank with respect to this paragraph Agreement or the transactions contemplated by this Agreement and the payment of such costs (computed from the date incurred). The obligations of the parties under this paragraph amounts shall survive the termination of the Binding Provisionsbe Buyer’s sole and exclusive remedy against Company, Company Bank, and their respective Affiliates, Representatives or successors in interest.

Break-Up Fee. (a) In the event that (1i) upon a Definitive Agreement is not successfully negotiated and entered into, or (2) vote at a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination duly held meeting of the Definitive Agreementstockholders of the Company or any adjournment thereof, as the case may be, Sulcus any stockholder approval contemplated by this Agreement shall not have been approved or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth Board shall have withdrawn, modified or amended (or resolved to withdraw, modify or amend) in clause (2) occurs due any respect its recommendation to its stockholders that this Agreement be approved by the failure to obtain Company's stockholders, the approval Company shall pay ZGNA all of ZGNA's reasonable out-of-pocket expenses incurred in connection with the stockholders transactions contemplated hereby, including fees and expenses of Tridex or Sulcus or any third party consentits counsel and financial advisors; provided, that the executive officers and directors Company shall not be liable for out-of-pocket expenses in excess of Tridex and Sulcus will agree to vote their shares in favor $500,000. (b) If within twelve (12) months of the Proposed Transaction termination date of this Agreement for either of the reasons set forth in 9.5(a) the Company shall sell such number of shares of Common Stock equal to or greater than 49% of the issued and outstanding shares of the Common Stock (calculated by using the number of issued and outstanding shares of Common Stock as of the date hereof) by way of sale of securities, merger, reorganization, or shall sell all or substantially all of its assets, the Company shall pay $1,500,000 (the "Termination Fee") to undertake a best efforts solicitation with respect to ZGNA in immediately available funds no later than two (2) Business Days after entry into such agreement. The Company agrees that it will not structure any transaction or agreement for the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants purpose of avoiding payment of Termination Fee. The Company acknowledges that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is agreements contained in this Section 9.5 are an integral part of the Proposed Transaction transactions contemplated in this Agreement, and that, without this provisionthese agreements, they ZGNA would not have entered enter into this Proposed Transaction. AccordinglyAgreement; accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail the Company fails to promptly pay such the amount when due pursuant to this paragraphSection 9.5, and, in order to obtain such payment, ZGNA commences a suit is commencedwhich results in a judgment against the Company for the Termination Fee, the owing party Company shall pay reasonable to ZGNA its costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined the amount of the fee at the prime rate of Citibank, N.A. on the date such payment was required to be due made. Notwithstanding the foregoing, no Termination Fee or payment under Section 9.5(a) shall be payable if the transactions contemplated hereunder are not consummated because (i) the Company's Board of Directors withdraws its recommendation of this Agreement as a result of a material breach or misrepresentation by ZGNA, (ii) the Company or ZGNA failed to enter into a definitive credit agreement with their respective lenders, (iii) the Company terminates this Agreement because of a material breach (including a material breach of Section 6.9 herein) or a material misrepresentation by ZGNA, (iv) approval under the HSR is not obtained (assuming the Company and payable ZGNA have made appropriate HSR filings) or (v) the Company terminates this Agreement as a result of failure to satisfy Sections 8.3 (Injunction), 8.6 (Adverse Development), 8.10 (Transaction Documents), 8.11 (ZGNA's Certificates), 8.12 (Counsel's Opinion), 8.13 (Completion of Mergers) or 8.16 (Sales Force). (c) Notwithstanding, in the event ZGNA shall have exercised the Option and shall thereafter sell the shares of Common Stock received by it upon exercise of the Option, ZGNA shall pay to the Company any fees and expenses (including Termination Fee) received by it pursuant to this paragraph and Section to the extent the net proceeds received by it in connection with such costs (computed from sale exceed the date incurred). The obligations of exercise price for the parties under this paragraph shall survive the termination of the Binding ProvisionsOption.

Break-Up Fee. In (a) Provided that neither party has breached in any material respect its obligations under this Agreement, as a condition and inducement to both parties' willingness to enter into and perform this Agreement, a fee ("Break-Up Fee") equal to two percent (2%) of the event that aggregate Merger Consideration as defined in Section 1.06 of this Agreement shall be payable as outlined in Section 6.07 (b), (c) and (d) below. (b) The Break-Up Fee shall be payable by the Company to Merchants only if: (A) The Board of Directors of the Company (1) a Definitive shall have withdrawn, modified or amended in any respect its approval or recommendation of this Agreement is not successfully negotiated and entered intoor the transactions contemplated thereby, or (2) a Definitive shall not at the appropriate time have recommended or shall have withdrawn, modified or amended in any respect its recommendation that its shareholders vote in favor of this Agreement, or (3) shall not have included such recommendation in the Proxy Statement/Prospectus or (B) the Board of Directors of the Company shall have resolved to do any of the foregoing; or (ii) The Company violates Section 4.02(e) hereof. (c) The Break-Up Fee shall be payable by Merchants to the Company only if: (i) Merchants is unable to obtain the regulatory approvals from the Federal Reserve Bank necessary to complete the Merger, unless such inability to obtain said approval is due to new regulatory requirements imposed by the Federal Reserve Bank which up to the date of this Agreement is entered into but a Closing had not been in effect; or (ii) The SEC does not occurdeclare the Registration Statement to be effective or the SEC issues a stop order suspending the effectiveness of the Registration Statement under the Securities Act, and, unless such action by the SEC is due to new regulatory requirements imposed by the SEC which up to the date of this Agreement had not been in effect. (d) The Break-Up Fee shall be paid within one three (13) year after days subsequent to a termination of this Letter Agreement and shall be considered liquidated damages and shall be payable in addition to any other damages, fees or expenses to which Merchants may be entitled pursuant to Paragraph K(ii) the terms of this Agreement or termination of the Definitive Agreement, as the case may be, Sulcus remedies at law or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is an integral part of the Proposed Transaction and that, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail to pay such amount when due pursuant to this paragraph, and, in order to obtain such payment, suit is commenced, the owing party shall pay reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding Provisionsequity.

Break-Up Fee. In If (a) the event Company breaches any provisions of Section 4.2 above or the Company provides to the Parent written notice that (1) a Definitive this Agreement is not successfully negotiated terminated in the absence of a material breach of the representations, warranties and entered into, covenants of the Parent and Newco hereunder or the failure of the conditions set forth in Sections 6.1(b) or (2c), and (b) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year six months after termination of this Letter pursuant to Paragraph K(ii) or termination the later of the Definitive Agreementdate of such termination or the Termination Date, as the case may be, Sulcus the Company signs a letter of intent or Tridex closes a transaction other agreement relating to the acquisition of a material portion of the Company Capital Stock or of the Company, its assets assets, or business, in whole or in part, whether directly or indirectly, through purchase, merger, consolidation, business combination or otherwiseotherwise (other than sales of inventory or immaterial portions of the Company's assets in the ordinary course) and such transaction is ultimately consummated, then, immediately upon the closing of such closingtransaction, Tridex shall the Company will pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the Parent the sum of $2,000,000; provided, however, that no such payment 500,000 (the "Break-Up Fee") by wire transfer of immediately available funds. This Break-Up Fee will be required if (i) serve as the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due exclusive remedy to the failure to obtain Parent under this Agreement in the approval event of a breach by the Company of the stockholders provisions of Tridex or Sulcus or Section 4.2 and in any third party consent; provided, other case where the Break-Up Fee is payable. The parties acknowledge that the executive officers agreements contained in Section 4.2 and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is this Section 4.3 are an integral part of the Proposed Transaction transactions contemplated by this Agreement, and that, without this provisionthese agreements, they Parent would not have entered enter into this Proposed Transaction. AccordinglyAgreement; accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail the Company fails promptly to pay such any amount when due pursuant to this paragraphSection 4.3, and, in order to obtain such payment, Parent commences a suit is commencedwhich results in a judgment against the Company for the fee set forth in this Section 4.3, the owing party Company shall pay reasonable to Parent its costs and expenses (including reasonable attorneys' feesfees and expenses) in connection with such suit, together with interest computed on any amounts determined the amount of the fee at the prime rate published in the Wall Street Journal on the date such payment was required to be due and made. Where the Break-Up Fee is not payable under this Section 4.3, the parties agree that any remedy or amount payable pursuant to this paragraph and such costs (computed from Section 4.3 shall not be an exclusive remedy for any breach of any representation, warranty, covenant or agreement contained in this Agreement; provided that there shall be no remedies for any breaches resulting in a loss of less than $10,000 individually or in the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding Provisionsaggregate.

Break-Up Fee. (a) In the event that (1i) upon a Definitive Agreement is not successfully negotiated and entered into, or (2) vote at a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination duly held meeting of the Definitive Agreementstockholders of the Company or any adjournment thereof, as the case may be, Sulcus any stockholder approval contemplated by this Agreement shall not have been approved or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if (i) the condition set forth in clause (1) occurs due to Tridex or Sulcus exercising its rights under the last sentence of Paragraph B, (ii) the condition set forth Board shall have withdrawn, modified or amended (or resolved to withdraw, modify or amend) in clause (2) occurs due any respect its recommendation to its stockholders that this Agreement be approved by the failure to obtain Company's stockholders, the approval Company shall pay ZGNA all of ZGNA's reasonable out-of-pocket expenses incurred in connection with the stockholders transactions contemplated hereby, including fees and expenses of Tridex or Sulcus or any third party consentits counsel and financial advisors; provided, that the executive officers and directors Company shall not be liable for out-of-pocket expenses in excess of Tridex and Sulcus will agree to vote their shares in favor $500,000. (b) If within twelve (12) months of the Proposed Transaction termination date of this Agreement for either of the reasons set forth in 9.5(a) the Company shall sell such number of shares of Common Stock equal to or greater than 49% of the issued and outstanding shares of the Common Stock (calculated by using the number of issued and outstanding shares of Common Stock as of the date hereof) by way of sale of securities, merger, reorganization, or shall sell all or substantially all of its assets, the Company shall pay $1,500,000 (the "TERMINATION FEE") to undertake a best efforts solicitation with respect to ZGNA in immediately available funds no later than two (2) Business Days after entry into such agreement. The Company agrees that it will not structure any transaction or agreement for the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants purpose of avoiding payment of Termination Fee. The Company acknowledges that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is agreements contained in this Section 9.5 are an integral part of the Proposed Transaction transactions contemplated in this Agreement, and that, without this provisionthese agreements, they ZGNA would not have entered enter into this Proposed Transaction. AccordinglyAgreement; accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail the Company fails to promptly pay such the amount when due pursuant to this paragraphSection 9.5, and, in order to obtain such payment, ZGNA commences a suit is commencedwhich results in a judgment against the Company for the Termination Fee, the owing party Company shall pay reasonable to ZGNA its costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined the amount of the fee at the prime rate of Citibank, N.A. on the date such payment was required to be due made. Notwithstanding the foregoing, no Termination Fee or payment under Section 9.5(a) shall be payable if the transactions contemplated hereunder are not consummated because (i) the Company's Board of Directors withdraws its recommendation of this Agreement as a result of a material breach or misrepresentation by ZGNA, (ii) the Company or ZGNA failed to enter into a definitive credit agreement with their respective lenders, (iii) the Company terminates this Agreement because of a material breach (including a material breach of Section 6.9 herein) or a material misrepresentation by ZGNA, (iv) approval under the HSR is not obtained (assuming the Company and payable ZGNA have made appropriate HSR filings) or (v) the Company terminates this Agreement as a result of failure to satisfy Sections 8.3 (Injunction), 8.6 (Adverse Development), 8.10 (Transaction Documents), 8.11 (ZGNA's Certificates), 8.12 (Counsel's Opinion), 8.13 (Completion of Mergers) or 8.16 (Sales Force). (c) Notwithstanding, in the event ZGNA shall have exercised the Option and shall thereafter sell the shares of Common Stock received by it upon exercise of the Option, ZGNA shall pay to the Company any fees and expenses (including Termination Fee) received by it pursuant to this paragraph and Section to the extent the net proceeds received by it in connection with such costs (computed from sale exceed the date incurred). The obligations of exercise price for the parties under this paragraph shall survive the termination of the Binding ProvisionsOption.

Break-Up Fee. Each Shareholder hereby agrees that, during the applicable Break-Up Fee Period as defined below, in the event of a sale, merger, consolidation or other disposition of all or a majority of the assets or stock of any Company or GHA, to, with or into a third party other than an affiliate of FNEDC, another Company, GHA or a Shareholder, or in the event any Company otherwise combines or forms a partnership with a third party other than an affiliate of FNEDC, another Company, GHA or a Shareholder, then FNEDC would be irreparably harmed. Accordingly, in the event of any such sale, merger, consolidation or other combination (a "Transaction"), within the applicable Break-Up Fee Period set forth below, each Shareholder hereby agrees that he shall be jointly and severally liable to FNEDC for liquidated damages in the aggregate amount of One Million Dollars ($1,000,000) under this Agreement and the DPO Stock Purchase Agreement, which liquidated damages shall be due and payable to FNEDC immediately upon the consummation of any such sale, merger, consolidation or other combination. In the event that (1i) a Definitive FNEDC terminates this Agreement is not successfully negotiated in accordance with Article IX hereof or FNEDC of NJ terminates the DPO Stock Purchase Agreement in accordance with Article IX thereof and entered intothe Shareholders are unable to terminate either this Agreement in accordance with Article IX hereof or the Stock Purchase Agreement in accordance with Article IX thereof, or (2ii) the Shareholders fail to make good faith commercially reasonable efforts to fulfill the closing conditions set forth in Section 4.1 hereof by the Closing Date and FNEDC delivers a Definitive Agreement is entered into but a Closing does not occurwritten notice to the Shareholders stating its election to terminate this Agreement, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination then the Break-Up Fee Period shall commence as of the Definitive Agreement, as - 27 - 35 Closing Date and expire no earlier than six (6) months from such date. In the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transaction), or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction), the sum of $2,000,000; provided, however, that no such payment will be required if event (i) the condition Shareholders terminate this Agreement in accordance with Article IX hereof, or (ii) FNEDC is unable to, or elects not to, fulfill the closing conditions set forth in clause (1) occurs due Section 4.2 hereof by the Closing Date and the Shareholders deliver a written notice to Tridex or Sulcus exercising its rights under FNEDC stating their election to terminate this Agreement, then the last sentence of Paragraph B, (ii) the condition set forth in clause (2) occurs due to the failure to obtain the approval Break-Up Fee Period shall terminate as of the stockholders date of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; or (iii) if Tridex or Sulcus is advised by its accountants that the Proposed Transaction cannot be structured as a tax-free transaction accounted for as a pooling of interests. Each of the parties acknowledges and agrees that the provisions for the payment of break-up fees is an integral part of the Proposed Transaction and that, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail to pay such amount when due pursuant to this paragraph, and, in order to obtain such payment, suit is commenced, the owing party shall pay reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding Provisionsnotice.

Break-Up Fee. In (a) The parties hereby acknowledge that, in negotiating and executing this Agreement and in taking the event that steps necessary or appropriate to effect the transactions contemplated hereby, Arcada has incurred and will incur direct and indirect monetary and other costs (1) including without limitation attorneys' fees and costs, costs of Arcada management and employee time and potential damage to Arcada's business and franchises as a Definitive Agreement is not successfully negotiated and entered into, or (2) a Definitive Agreement is entered into but a Closing does not occur, and, within one (1) year after termination of this Letter pursuant to Paragraph K(ii) or termination result of the Definitive Agreement, as announcement of the case may be, Sulcus or Tridex closes a transaction relating to the acquisition of a material portion of its assets or business, in whole or in part, whether through purchase, merger, consolidation, business combination or otherwise, then, immediately upon such closing, Tridex shall pay to Sulcus (if Tridex enters into such alternative transactionpending Merger), or Sulcus shall pay will forego discussion with other potential merger candidates and will forego various business activities which it would have otherwise undertaken if it remained an independent institution. To compensate Arcada for such costs and to Tridex (if Sulcus enters into such an alternative transaction)induce it to forego initiating discussion with other potential merger candidates, the sum of $2,000,000; provided, however, that no such payment will be required if (i) if this Agreement terminates because TTA (or Newco) does not use all reasonable efforts to consummate the transactions contemplated by this Agreement in accordance with the terms of this Agreement (unless a condition set forth in clause Section 7.3 is not satisfied and such nonsatisfaction has not been the result of the failure of TTA (1or Newco) occurs due to Tridex or Sulcus exercising its rights under use all reasonable efforts to consummate this Agreement in accordance with the last sentence terms of Paragraph Bthis Agreement), (ii) if TTA terminates this Agreement for any reason other than the condition grounds for termination set forth out in clause (2Section 8.1(a), 8.1(b) occurs due to the failure to obtain the approval of the stockholders of Tridex or Sulcus or any third party consent; provided, that the executive officers and directors of Tridex and Sulcus will agree to vote their shares in favor of the Proposed Transaction and to undertake a best efforts solicitation with respect to the vote to approve the Proposed Transaction; 8.1(d) or (iii) if Tridex Arcada terminates this Agreement pursuant to Section 8.1(c)(ii), then TTA shall pay to Arcada on demand (and in no event more than three days after such demand) in immediately available funds, Two Hundred Thousand Dollars ($200,000.00). (b) The parties hereby acknowledge that, in negotiating and executing this Agreement and in taking the steps necessary or Sulcus is advised by its accountants that appropriate to effect the Proposed Transaction cannot be structured transactions contemplated hereby, TTA has incurred and will incur direct and indirect monetary and other costs (including without limitation attorneys' fees and costs, costs of TTA management and employee time and potential damage to TTA's business and franchises as a tax-free transaction accounted for as a pooling of interests. Each result of the announcement of the pending Merger), will forego discussion with other potential merger candidates and will forego various business activities which it would have otherwise undertaken if it remained an independent institution. To compensate TTA for such costs and to induce it to forego initiating discussion with other potential merger candidates, (i) if this Agreement terminates because Arcada does not use all reasonable efforts to consummate the transactions contemplated by this Agreement in accordance with the terms of this Agreement (unless a condition set forth in Section 7.2 is not satisfied and such nonsatisfaction has not been the result of the failure of Arcada to use all reasonable efforts to consummate this Agreement in accordance with the terms of this Agreement), (ii) if Arcada terminates this Agreement for any reason other than the grounds for termination set out in Section 8.1(a), 8.1(b) or 8.1(d) or (iii) if TTA terminates this Agreement pursuant to Section 8.1(c)(ii), then Arcada shall pay to TTA on demand (and in no event more than three days after such demand) in immediately available funds, Two Hundred Thousand Dollars ($200,000.00). (c) Notwithstanding the foregoing, the parties acknowledges hereto hereby acknowledge and agrees agree that non-compliance with the provisions of Section 6.17(a) or Section 7.3(c) above is not the basis for any party hereto to be entitled to the payment of break-up fees is an integral part of the Proposed Transaction and that, without this provision, they would not have entered into this Proposed Transaction. Accordingly, if a break-up fee shall become due and payable by a party, and such party shall fail to pay such amount when due pursuant to set forth in this paragraph, and, in order to obtain such payment, suit is commenced, the owing party shall pay reasonable costs and expenses (including reasonable attorneys' fees) in connection with such suit, together with interest computed on any amounts determined to be due and payable pursuant to this paragraph and such costs (computed from the date incurred). The obligations of the parties under this paragraph shall survive the termination of the Binding ProvisionsSection 8.3.