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. 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. If this Agreement is terminated by Buyer pursuant to Section 7.1(d) or the Selling Parties pursuant to Section 7.1(e), within five (5) Business Days after the date of such termination, the Buyer shall pay the Selling Parties a fee in the amount of Four Million Eight Hundred Thirty Six Thousand and No/100 Dollars ($4,836,000.00) (“Break-Up Fee”), which payment shall not be deemed a penalty but will constitute liquidated damages in lieu of any and all claims for costs or damages of any nature whatsoever; provided however, in no event shall the Buyer be obligated to pay the Break-Up Fee if, in order to consummate the Contemplated Transactions, the Buyer or the Seller would be required (and solely to the extent that in the judgment of the FTC, Antitrust Division or other Governmental Authority, the Antitrust Laws would so require), to (a) litigate or participate in the litigation of any Proceeding involving the FTC, Antitrust Division or other Governmental Authority; (b) propose, negotiate, effect or agree to the sale, divestiture, license or disposition of any assets, businesses, products, or operations; or (c) accept any consent decree. The parties agree and acknowledge that the Break-Up Fee accurately reflects a reasonable estimate of the loss the Selling Parties would likely sustain by way of such termination, and that damages to the Selling Parties would be difficult to ascertain. In the event that the Buyer is required to pay the Break-up Fee pursuant to this Section 7.3 and the Buyer pays the Break-up Fee, payment of such fee shall be the sole and exclusive remedy (1whether at law, in equity, in contract, in tort or otherwise) of the Selling Parties against the Buyer and its Affiliates for any Losses suffered or incurred as a Definitive Agreement is not successfully negotiated and entered intoresult of, or in connection with, the failure of the Closing to occur (2) and such payment of the Break-Up Fee shall constitute liquidated damages, and not a Definitive Agreement is entered into but a Closing does not occurpenalty), andand in such case, within one (1) year after following the termination of this Letter pursuant to Paragraph K(ii) or termination Agreement none of the Definitive Agreement, as the case may be, Sulcus Buyer or Tridex closes a transaction its Affiliates shall have any Liability arising out of or relating to this Agreement or 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 transactions contemplated hereby other than Buyer’s obligation to pay such amount the Break-Up Fee when due pursuant to this paragraphSection 7.3; provided further that in the event an action is commenced by either the Selling Parties against the Buyer, andor the Buyer against the Selling Parties, 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 payment or collection of the parties under this paragraph Break-up Fee, the prevailing party in such action shall survive the termination of the Binding Provisionsbe entitled to recover attorneys’ fees, expenses, and court costs incurred in connection therewith.

Break-Up Fee. In Notwithstanding the provisions of Section 11.2, in the event that (1a) Seller terminates this Agreement pursuant to clause (i) of Section 11.1(c) under circumstances where (i) the failure to satisfy, comply with or perform any of the conditions set forth in Section 9 above shall arise by reason of a Definitive default by Buyer of any of its obligations under this Agreement or the failure by Buyer to use commercially reasonably efforts to satisfy, comply with or perform such condition if such condition could have been satisfied, complied with or performed through Buyer’s commercially reasonable efforts, and (ii) the failure to satisfy, comply with or perform such condition is or would reasonably be expected to have a material adverse effect on the assets, business, results of operations or condition (financial or otherwise) of Seller and its subsidiaries, taken as a whole, upon or after the Closing, (b) Seller terminates this Agreement pursuant to clause (ii) of Section 11.1(c) and as of such date Seller is ready, willing and able to effect the Closing (subject to any required performance by Buyer in order to satisfy any of conditions set forth in Section 9) but Buyer fails to effect the Closing for any reason (or for no reason), (c) Buyer terminates this Agreement pursuant to Section 11.1(b) in circumstances where (i) Buyer has not consummated the transactions contemplated by this Agreement as a result of the conditions set forth in Section 8 above not having been satisfied, complied with or performed (and such failure of satisfaction, compliance or performance is not successfully negotiated the result, directly or indirectly, of any breach of this Agreement on the part of Buyer), and entered into(ii) the failure to satisfy, comply with or perform such conditions, or the consummation of the Closing and operation of the Business following the Closing without satisfaction, compliance with or performance of such conditions, has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (2d) a Definitive Buyer terminates this 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 AgreementSection 11.1(e), 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 then Buyer shall pay to Sulcus (if Tridex enters into such alternative transaction)Seller, or Sulcus shall pay to Tridex (if Sulcus enters into such an alternative transaction)by wire transfer of immediately available funds, the sum of $2,000,000; provided, however, that no 2,000,000 (the “Break Up Fee”) promptly after the date of the event giving rise to such payment will obligation, which payment shall constitute liquidated damages and shall be Seller’s sole and exclusive remedy for any such termination. Notwithstanding anything to the contrary in clauses (b) or (c) of this Section 11.3, no Break Up Fee shall 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 be paid 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 Buyer pursuant to this paragraphSection 11.3 if, and, in order to obtain such payment, suit is commenced, at 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 time of the parties under this paragraph shall survive the termination of this Agreement, either (A) the Binding Provisionsapplicable waiting period under the HSR Act has not expired without governmental action and same is not the result of any failure by Buyer to use commercially reasonable efforts to pursue and obtain HSR Act clearance, or (B) a consent under or amendment to the Credit Agreement entered into as of July 30, 2004, between Seller and its Material Subsidiaries and Bank of America, N.A., as amended, has not been effected releasing the Companies as guarantors thereunder, and releasing the Companies of all liabilities and obligations thereunder.

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.