Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. (a) If this Agreement is terminated by Sellers and/or the Company in breach of SECTION 6.9 or by Buyer pursuant to SECTION 9.2(c) because of a breach by either of the Paxsons and/or the Company of SECTION 6.9, then, as the sole and exclusive remedy of Buyer for such breaches, the Company and the Paxsons, jointly and severally, shall immediately (but in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, the sum of Two Million Two Hundred Seventy-Five Thousand Dollars ($2,275,000) (such aggregate amount being the "BREAK-UP FEE"); provided that if the Company and Sellers shall fail to make the payment of the Break-Up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from the Company and the Paxsons. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(a) shall terminate. (b) If this Agreement is terminated by Sellers and/or the Company in breach of SECTION 6.9 as a result of or relating to any act of PNI or by Buyer pursuant to SECTION 9.2(c) because of a breach by PNI of SECTION 6.9, then, as the sole and exclusive remedy of Buyer for such breaches, PNI shall immediately (but in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, an amount equal to the Break-Up Fee; provided that if PNI shall fail to make the payment of the Break-Up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from PNI. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(b) shall terminate. (c) Buyer shall not be entitled to receive payment of an amount equal to more than one Break-Up Fee under this SECTION 9.5.

Break-Up Fee. (a) If 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 $615,000 (“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) Buyer terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c), 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 Sellers and/or either Buyer or Company pursuant to Section 8.01(c) or Section 8.01(f) (without the Requisite Company in breach of SECTION 6.9 Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to SECTION 9.2(cSection 8.01(e) because as a result of willful and intentional breach of a breach covenant by either 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 Paxsons and/or foregoing Acquisition Proposal)), then Company shall, on the Company earlier of SECTION 6.9the date it enters into such agreement or the date of consummation of such transaction, thenpay Buyer the Break-Up Fee, as provided, that for purposes of this Section 8.02(a), all references in the sole and exclusive remedy definition of Buyer for such breaches, the Acquisition Transaction to “15%” shall instead refer to “50%”. (b) Company and Buyer each agree that the Paxsonsagreements contained in this Section 8.02 are an integral part of the transactions contemplated by this Agreement, jointly and severallythat, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 8.02, Company shall immediately (but in no event later than twenty-four (24) hours following any pay interest on such termination) pay amounts from the date payment of such amounts were due to Buyer, in cash, the date of actual payment at the rate of interest equal to the sum of Two Million Two Hundred Seventy-Five Thousand Dollars ($2,275,000i) 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 aggregate amount being payment was due, plus (ii) 200 basis points, together with the "BREAK-UP FEE"); provided costs and expenses of Buyer (including legal fees and expenses) reasonably incurred in connection with such suit to enforce such payment. (c) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if the Company and Sellers shall fail pays or causes to make the payment of be paid to Buyer the Break-Up Fee when in accordance with Section 8.02(a), neither Company nor Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Bank) will have any further obligations or liabilities to Buyer with respect to this Agreement or the {Clients/1521/00383953.DOCX/7 }62 transactions contemplated by this Agreement and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount payment of such Break-Up Fee from the Company and the Paxsons. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(a) amounts shall terminate. (b) If this Agreement is terminated by Sellers and/or the Company in breach of SECTION 6.9 as a result of or relating to any act of PNI or by Buyer pursuant to SECTION 9.2(c) because of a breach by PNI of SECTION 6.9, then, as the be Buyer’s sole and exclusive remedy of Buyer for such breachesagainst Company, PNI shall immediately (but Bank, and their respective Affiliates, Representatives or successors in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, an amount equal to the Break-Up Fee; provided that if PNI shall fail to make the payment of the Break-Up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from PNI. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(b) shall terminateinterest. (c) Buyer shall not be entitled to receive payment of an amount equal to more than one Break-Up Fee under this SECTION 9.5.

Break-Up Fee. (a) If In the event that Buyer ------------ ------------ shall announce the execution of this Agreement is terminated by Sellers and/or prior to the Company in breach of SECTION 6.9 or by Buyer pursuant to SECTION 9.2(c) because of a breach by either consummation of the Paxsons and/or the Company of SECTION 6.9Merger, then, as in the sole event that the Merger is not consummated prior to 5:00 p.m. Eastern Standard Time on the later to occur of (i) the seventh day after the execution of this Agreement or (ii) the day on which all of the Company's and exclusive remedy the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer for acted or failed to act with the intention of causing such breachesfailure of satisfaction), Buyer shall immediately pay the Company and the Paxsons, jointly and severally, shall immediately (but in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, the sum of Two Million Two Hundred Seventy-Five Thousand Dollars dollars ($2,275,000200,000) cash (such aggregate amount being the "BREAKBreak-UP FEEup Fee"); provided , provided, however, that if the Company and Sellers shall fail to make the payment of ------------------ immediately return the Break-Up up Fee when to Buyer in the event that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full of the conditions to the Buyer's obligations set forth in Section 9.02 and as requiredthe filing of the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.02, the preceding 7-day period shall be suspended and Buyer shall have the right no obligation to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from the Company and the Paxsons. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(a) shall terminate. (b) If this Agreement is terminated by Sellers and/or the Company in breach of SECTION 6.9 as a result of or relating to any act of PNI or by Buyer pursuant to SECTION 9.2(c) because of a breach by PNI of SECTION 6.9, then, as the sole and exclusive remedy of Buyer for such breaches, PNI shall immediately (but in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, an amount equal to the Break-Up Fee; provided that if PNI up Fee to the Company pending the Secretary of State's review and approval of the Merger, for so long as the parties are engaged in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall fail to make the payment of promptly pay the Break-Up up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from PNI. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(b) shall terminateCompany. (c) Buyer shall not be entitled to receive payment of an amount equal to more than one Break-Up Fee under this SECTION 9.5.

Break-Up Fee. (a) If 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 after the date of this Agreement and prior to the termination of this 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 Sellers and/or either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company in breach of SECTION 6.9 Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to SECTION 9.2(cSection 7.01(e) because as a result of willful breach of a breach covenant by either 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 Paxsons and/or foregoing Acquisition Proposal), then Company shall, on the Company earlier of SECTION 6.9the date it enters into such agreement and the date of consummation of such transaction, thenpay Buyer the Break-Up Fee, as provided, that for purposes of this Section 7.03(a), all references in the sole and exclusive remedy definition of Buyer for such breaches, the Acquisition Transaction to “15%” shall instead refer to “50%”. (b) Company and Buyer each agree that the Paxsonsagreements contained in this Section 7.03 are an integral part of the transactions contemplated by this Agreement, jointly and severallythat, without these agreements, Buyer would not enter into this Agreement; accordingly, if Company fails promptly to pay any amounts due under this Section 7.03, Company shall immediately (but in no event later than twenty-four (24) hours following any pay interest on such termination) pay amounts from the date payment of such amounts were due to Buyer, in cash, the date of actual payment at the rate of interest equal to the sum of Two Million Two Hundred Seventy-Five Thousand Dollars ($2,275,000i) 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 aggregate amount being payment was due, plus (ii) 200 basis points, together with the "BREAK-UP FEE"); provided costs and expenses of Buyer (including legal fees and expenses) reasonably incurred in connection with such suit. (c) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if the Company and Sellers shall fail pays or causes to make the payment of be paid to Buyer or to Buyer Bank the Break-Up Fee when 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 Agreement or the transactions contemplated by this Agreement and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount payment of such Break-Up Fee from the Company and the Paxsons. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(a) amounts shall terminate. (b) If this Agreement is terminated by Sellers and/or the Company in breach of SECTION 6.9 as a result of or relating to any act of PNI or by Buyer pursuant to SECTION 9.2(c) because of a breach by PNI of SECTION 6.9, then, as the be Buyer’s sole and exclusive remedy of Buyer for such breachesagainst Company, PNI shall immediately (but Company Bank, and their respective Affiliates, Representatives or successors in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, an amount equal to the Break-Up Fee; provided that if PNI shall fail to make the payment of the Break-Up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from PNI. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(b) shall terminateinterest. (c) Buyer shall not be entitled to receive payment of an amount equal to more than one Break-Up Fee under this SECTION 9.5.

Break-Up Fee. (a) If In the event that (i) Parent terminates this Agreement pursuant to Section 7.1(a) or Section 7.1(c) where the failure of the Closing to occur by the Long Stop Date is terminated due to material breach of this Agreement by Sellers and/or any Warrantor, or (ii) (x) all of the conditions set forth in Section 6.1 and Section 6.3 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied, (y) the Parent has delivered to the Company an irrevocable written notice confirming that all of the conditions set forth in breach Section 6.2 have been satisfied (or that Parent is waiving any unsatisfied conditions in Section 6.2) and that it is ready, willing and able to consummate the Closing and (z) the Company fails to complete the Closing within ten (10) Business Days following the later of SECTION 6.9 or by Buyer (A) date on which the Closing should have occurred pursuant to SECTION 9.2(cSection 2.3 and (B) because of a breach by either of the Paxsons and/or date on which the Company of SECTION 6.9, then, as foregoing notice is delivered to the sole and exclusive remedy of Buyer for such breachesCompany, the Company shall promptly (and in any event within five (5) Business Days after the Paxsonstermination of this Agreement) pay, jointly and severallyor cause to be paid to, shall immediately Parent a fee equal to three (but in no event later than twenty-four (243%) hours following any such termination) pay to Buyer, in cash, the sum of Two Million Two Hundred Seventy-Five Thousand Dollars ($2,275,000) (such aggregate amount being the "BREAK-UP FEE"); provided that if the Company and Sellers shall fail to make the payment of the Break-Up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from the Company and the Paxsons. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(a) shall terminate.Preliminary Merger Consideration; (b) If In the event that (i) the Company terminates this Agreement pursuant to Section 7.1(b) or Section 7.1(d) where the failure of the Closing to occur by the Long Stop Date is terminated due to material breach of this Agreement by Sellers and/or any Parent Party, or (ii) (x) all of the conditions set forth in Section 6.1 and Section 6.2 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied, (y) the Company has delivered to Parent an irrevocable written notice confirming that all of the conditions set forth in breach Section 6.3 have been satisfied (or that the Company is waiving any unsatisfied conditions in Section 6.3) and that it is ready, willing and able to consummate the Closing and (z) Parent Parties fail to complete the Closing within ten (10) Business Days following the later of SECTION 6.9 as a result of or relating to any act of PNI or by Buyer (A) date on which the Closing should have occurred pursuant to SECTION 9.2(cSection 2.3 and (B) because the date on which the foregoing notice is delivered to Parent, Parent shall promptly (and in any event within five (5) Business Days after the termination of this Agreement) pay, or cause to be paid to, the Company a breach by PNI of SECTION 6.9, then, as the sole and exclusive remedy of Buyer for such breaches, PNI shall immediately (but in no event later than twenty-four (24) hours following any such termination) pay to Buyer, in cash, an amount fee equal to the Break-Up Fee; provided that if PNI shall fail to make the payment three (3%) of the Break-Up Fee when and as required, Buyer shall have the right to pursue all of its remedies in law or in equity to recover the amount of such Break-Up Fee from PNI. If this Agreement is properly terminated pursuant to SECTION 9 for any reason other than a reason relating to a breach of SECTION 6.9 which termination is effective prior to the date that a breach of SECTION 6.9 first occurs, then the right of Buyer to receive a Break-Up Fee under this SECTION 9.5(b) shall terminate.Preliminary Merger Consideration; and (c) Buyer If either the Group Companies or the Founder Parties on the one hand, or Parent on the other hand, fails to pay any amounts due to the other Party under this Section 7.4, then the defaulting Party shall pay all reasonable and documented costs and expenses (including but not limited to legal fees and expenses) incurred by such other Party in connection with any action or proceeding (including but not limited to the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest accrued on such unpaid amounts from the date on which such payment became due through the date on which all the amounts due and payable under this Section 7.4 by the defaulting Party were fully received by such other Party at the prime lending rate as published in The Wall Street Journal in effect on the date such payment became due. Such collection expenses shall not be entitled to receive otherwise diminish in any way the payment of an amount equal to more than one Break-Up Fee under this SECTION 9.5obligations hereunder.