Common use of Company Payments Clause in Contracts

Company Payments. (i) The Company shall pay to Parent (or its designee) a fee equal to Nine Million Nine Hundred Thirty Six Thousand One Hundred Forty Five Dollars ($9,936,145) (the “Termination Fee Amount”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within one Business Day after demand by Parent, in the event that (A) (1) this Agreement is terminated pursuant to Section 9.1(b) or Section 9.1(c) (in either case, by reason of the failure of the Minimum Condition or any of the Offer Conditions set forth in clauses (C)(1), (C)(2), (C)(7) or (C)(8) of Annex A) or (2) this Agreement is terminated pursuant to Section 9.1(e)(i), (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement (in the case of any termination referred to in clause (A)(1) above) or prior to the breach or inaccuracy that forms the basis for the termination of this Agreement (in the case of any termination referred to in clause (A)(2) above), an Acquisition Proposal shall have been publicly announced or shall have become publicly known, or shall have been communicated or otherwise made known to the Company and (C) within 12 months following the termination of this Agreement, either an Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)) is consummated or the Company enters into a letter of intent, memorandum of understanding or Contract providing for an Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)) and such Acquisition Transaction is subsequently consummated (provided, however,

Company Payments. (i) The Company shall pay to Parent (or its designee) a fee equal to Nine Million Nine Hundred Thirty Six Thousand One Hundred Forty Five Dollars ($9,936,145) (the “Termination Fee Amount”), by wire transfer of in immediately available funds an amount equal to an account or accounts designated in writing by Parent, $16,200,000 (the "TERMINATION FEE"): (i) within one Business Day (1) business day after demand by Parent, in the event that if this Agreement is terminated by Parent pursuant to Section 7.1(i); and (ii) prior to and as a condition to any termination of this Agreement by Company pursuant to Section 7.1(j). (ii) If: (A) (1) this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 9.1(b) or Section 9.1(c) (in either case, by reason of the failure of the Minimum Condition or any of the Offer Conditions set forth in clauses (C)(1), (C)(2), (C)(7Sections 7.1(b) or (C)(8) of Annex A) or (2) this Agreement is terminated pursuant to Section 9.1(e)(id), ; (B) following prior to such termination, (x) there shall exist, or have been publicly proposed and not publicly definitively withdrawn at least five (5) business days prior to such termination, an Acquisition Proposal, or (y) one or more board members shall have changed their recommendation that Company's shareholders vote in favor of and approve this Agreement, the execution and delivery of Merger or the other transactions contemplated by this Agreement and prior to the termination of this Agreement (in the case of any termination referred to in clause (A)(1) above) or prior to the breach or inaccuracy that forms the basis for the termination of this Agreement (in the case of any termination referred to in clause (A)(2) above), an Acquisition Proposal shall have been publicly announced or shall have become such change was publicly known, or shall have been communicated or otherwise made known to the Company ; and (C) within 12 twelve (12) months following the termination of this Agreement, either an Agreement a Company Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)as defined below) is consummated or the Company enters into a letter of intent, memorandum of understanding or Contract definitive agreement providing for a Company Acquisition, then Company shall pay Parent in immediately available funds at or prior to consummating, or entering into a definitive agreement providing for, such Company Acquisition, respectively, an Acquisition Transaction amount equal to the Termination Fee. (whether or iii) Company acknowledges that the agreements contained in this Section 7.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if Company fails to pay in a timely manner the Acquisition Transaction referenced amounts due pursuant to this Section 7.3(b) and, in order to obtain such payment, Parent makes a claim that results in a judgment against Company for the amounts set forth in this Section 7.3(b), Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate of Bank of America N.T. & S.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of breach of this Agreement. For the purposes of this Agreement, "COMPANY ACQUISITION" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to which the shareholders of Company immediately preceding clause such transaction hold less than 50% of the aggregate equity interests in the surviving or resulting entity of such transaction, (Bii) a sale or other disposition by Company of assets representing in excess of 50% of the aggregate fair market value of Company's business immediately prior to such sale or (iii) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company)) and such Acquisition Transaction is subsequently consummated (provided, however,directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 50% of the voting power of the then outstanding shares of capital stock of Company.

Company Payments. (i) In the event that this Agreement is terminated by Parent pursuant to Section 9.1(e)(iii), within one Business Day after demand by Parent, the Company shall pay to Parent a fee of $7,600,000 (the “Termination Fee Amount”) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) The Company shall pay to Parent (or its designee) a fee equal to Nine Million Nine Hundred Thirty Six Thousand One Hundred Forty Five Dollars ($9,936,145) (the “Termination Fee Amount”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within one Business Day after demand by Parent, in the event that (A) (1) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(c) (in either case, by reason of the failure of the Minimum Condition or any of the Offer Conditions set forth in clauses (C)(1), (C)(2), (C)(7) or (C)(8) of Annex A) or (2) this Agreement is terminated by Parent pursuant to Section 9.1(e)(i), (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement (in the case of any termination referred to in clause (A)(1) above) or prior to the breach or inaccuracy that forms the basis for the termination of this Agreement (in the case of any termination referred to in clause (A)(2) above), an Acquisition Proposal shall have been publicly announced or shall have become publicly known, or shall have been communicated or otherwise made known to the Company and (C) within 12 twelve (12) months following the termination of this Agreement, either an a Company Acquisition Transaction (whether or not the Company Acquisition Transaction referenced in the preceding clause (B)) is consummated or or, within such twelve (12) month period, the Company enters into a letter of intent, memorandum of understanding or Contract providing for an a Company Acquisition Transaction (whether or not the Company Acquisition Transaction referenced in the preceding clause (B)) and such Company Acquisition Transaction is subsequently consummated (consummated; provided, however,, that the additional condition to payment that a Company Acquisition Transaction be so consummated shall not apply in the event that the Company terminates this Agreement. (iii) In the event that this Agreement is terminated by the Company pursuant to Section 9.1(d)(ii), prior and as a condition to the effectiveness of such termination, the Company shall pay to Parent a fee equal to the Termination Fee Amount by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.

Company Payments. (i) The Company shall pay to Parent (or its designee) a fee equal to Nine Million Nine Hundred Thirty Six Thousand One Hundred Forty Five Dollars ($9,936,145) (the “Termination Fee Amount”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within one Business Day after demand by Parent, in In the event that (A) (1) this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 9.1(bSections 7.1(d), 7.1(f) or Section 9.1(c7.1(h), the Company shall promptly, but in no event later than two days after the date of such termination, in addition to paying the Aggregate Bridge Loan Amount pursuant to the Bridge Loan, pay Parent a fee in immediately available funds in an amount equal to the sum of (x) three million five hundred thousand dollars ($3,500,000.00) plus (y) the Aggregate Bridge Loan Amount (but not to exceed an additional $2,100,000.00 dollars, thereby increasing such fee due under clauses (x) and (y) to a maximum of $5,600,000) (the "TERMINATION FEE"); provided, that in either case, by reason the case of a termination under Section 7.1(d) prior to which no Triggering Event has occurred or under Section 7.1(h) (and for the failure avoidance of the Minimum Condition or any of the Offer Conditions set forth in clauses (C)(1doubt a termination under Section 7.1(f) shall not be construed to be a termination under Section 7.1(h), (C)(2), i) such payment shall be made only if (C)(7) or (C)(8) of Annex A) or (2) this Agreement is terminated pursuant to Section 9.1(e)(i), (B) following the execution and delivery date of this Agreement and prior to the termination of this Agreement (in the case of any termination referred to in clause (A)(1) above) or prior to the breach or inaccuracy that forms the basis for the termination of this Agreement (in the case of any termination referred to in clause (A)(2) above)Agreement, a person has publicly announced an Acquisition Proposal shall have been publicly announced or shall have become publicly known, or shall have been communicated or otherwise made known to the Company and (CB) within 12 months following the termination of this Agreement, either an a Company Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)as defined below) is consummated consummated, or the Company 85 enters into a letter of intent, memorandum of understanding or Contract an agreement providing for a Company Acquisition and such Company Acquisition is later consummated with the person (or another person controlling, controlled by, or under common control with, such person) with whom such agreement was entered into (regardless of when such consummation occurs if the Company has entered into such an agreement within such 12-month period), and (ii) such payment shall be made promptly, but in no event later than two days after the consummation of such Company Acquisition Transaction (whether or regardless of when such consummation occurs if the Company has entered into such an agreement within such twelve-month period). Company acknowledges that the agreements contained in this Section 7.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Acquisition Transaction referenced Company fails to pay in a timely manner the amounts due pursuant to this Section 7.3(b), and, in order to obtain such payment, Parent makes a claim that results in a judgment against the Company for the amounts set forth in this Section 7.3(b), Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate of The Chase Manhattan Bank in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the preceding clause (B)) and such Acquisition Transaction is subsequently consummated (provided, however,event of breach of this Agreement.

Company Payments. (i) The In the event that this Agreement is terminated by Parent pursuant to Section 8.1(d)(iii) hereof, the Company shall pay to Parent (or its designee) a fee equal to Nine Million Nine Two Million, Four Hundred Thirty Six and Sixty Thousand One Hundred Forty Five Dollars ($9,936,1452,460,000) (the “Termination Fee Amount”)) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) The Company shall pay to Parent a fee equal to the Termination Fee Amount, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within one Business Day (1) business day after demand by Parent, in the event that (A1) (1A) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b8.1(b) or Section 9.1(c) (in either casehereof, by reason of the failure of the Minimum Condition or any of the Offer Conditions set forth in clauses (C)(1), (C)(2), (C)(7) or (C)(8) of Annex A) or (2B) this Agreement is terminated by Parent pursuant to Section 9.1(e)(i)8.1(d)(i) hereof, (B2) following the execution and delivery of this Agreement and prior to the termination of this Agreement (in the case of any termination referred to in clause (A)(11)(A) above) or prior to the breach or inaccuracy that forms the basis for the termination of this Agreement (in the case of any termination referred to in clause (A)(21)(B) above), an Acquisition Proposal shall have been publicly announced or shall have become publicly known, or and shall not have been communicated or otherwise made known to the Company withdrawn, and (C3) within 12 nine (9) months following the termination of this AgreementAgreement (in the case of any termination referred to in clause (1)(A) above) or within six (6) months following the termination of this Agreement (in the case of any termination referred to in clause (1)(B) above), either an Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)) is consummated or the Company enters into a letter of intent, memorandum of understanding intent or Contract providing for an Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)) and such Acquisition Transaction is subsequently consummated (provided, however,later consummated.

Company Payments. (i) The Company shall pay to Parent (or its designee) a fee equal to Nine One Million Nine Seven Hundred Thirty Six and Fifty Thousand One Hundred Forty Five Dollars ($9,936,1451,750,000) (the “Termination Fee Amount”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within one Business Day after demand by Parent, in the event that (A) (1) this Agreement is validly terminated pursuant to Section 9.1(b7.1(b) or Section 9.1(c) (in either case, by reason of the failure of the Minimum Condition or any of the Offer Conditions set forth in clauses (C)(1), (C)(2), (C)(7) or (C)(8) of Annex A) or (2) this Agreement is terminated pursuant to Section 9.1(e)(i7.1(d), (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement (in the case of any termination referred to in clause (A)(1) above) or prior to the breach or inaccuracy that forms the basis for the termination of this Agreement (in the case of any termination referred to in clause (A)(2) above)Agreement, an Alternative Acquisition Proposal shall have been publicly announced or shall have become publicly known, or shall have been communicated or otherwise made known to the Company Company, and (C) within 12 twelve (12) months following the termination of this Agreement, either an Acquisition Transaction (whether or not resulting from the Alternative Acquisition Transaction Proposal referenced in the preceding clause (B) and whether or not with the same counter-party or parties that made the Alternative Acquisition Proposal referenced in the preceding clause (B)) is consummated or the Company enters into a letter of intent, memorandum of understanding or Contract providing for an Acquisition Transaction (whether or not resulting from the Alternative Acquisition Transaction Proposal referenced in the preceding clause (B) and whether or not with the same counter-party or parties that made the Alternative Acquisition Proposal referenced in the preceding clause (B)). (ii) and such Acquisition Transaction In the event that this Agreement is subsequently consummated (providedvalidly terminated pursuant to Section 7.1(f)(i) or Section 7.1(f)(ii), however,within one Business Day after demand by Parent, the Company shall pay to Parent a fee equal to the Termination Fee Amount by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.

Company Payments. In the event that this Agreement is terminated by Buyer or the Company, as applicable, pursuant to Sections 9.1(b), (id) The or (f), the Company shall promptly, but in no event later than two days after the date of such termination, pay to Parent (or its designee) Buyer a fee equal to Nine Million Nine Hundred Thirty Six Thousand One Hundred Forty Five Dollars the higher of (x) $9,936,1452,000,000 or (y) an amount equal to the product of .05 multiplied by the number of shares of Buyer Common Stock to be issued in connection with the Merger (as determined below) multiplied by the “Average Buyer Termination Fee Amount”)Price, by wire transfer of in immediately available funds to an account or accounts designated in writing by Parent(the "Termination Fee"); provided, within one Business Day after demand by Parent, that in the event that (A) (1) this Agreement is terminated pursuant to case of termination under Section 9.1(b) or Section 9.1(c9.1(d): (i) (in either case, by reason of the failure of the Minimum Condition or any of the Offer Conditions set forth in clauses (C)(1), (C)(2), (C)(7) or (C)(8) of Annex A) or (2) this Agreement is terminated pursuant to Section 9.1(e)(i), (B) such payment shall be made only if following the execution and delivery date of this Agreement and prior to the termination of this Agreement (in the case of any termination referred to in clause (A)(1) above) or prior to the breach or inaccuracy that forms the basis for the termination of this Agreement (in the case of any termination referred to in clause (A)(2) above)Agreement, a third party has publicly announced and not withdrawn an Acquisition Proposal shall have been publicly announced or shall have become publicly knownand, or shall have been communicated or otherwise made known to the Company and (C) within 12 twelve months following the termination of this Agreement, either an any Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)) is consummated or the Company enters into a letter of intent, memorandum of understanding or Contract an agreement providing for an Acquisition Transaction (whether or not the Acquisition Transaction referenced in the preceding clause (B)) and such Acquisition Transaction is subsequently later consummated with (providedregardless of when such consummation occurs if the Company has entered into such an agreement within such twelve-month period), howeverand (ii) such payment in immediately available funds shall be made promptly, but in no event later than two days after the consummation of such Acquisition Transaction. The Company acknowledges that the agreements contained in this Section 9.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not enter into this Agreement; accordingly, if the Company fails to pay in a timely manner the amount due pursuant to this Section 9.3(b), and, in order to obtain such payment, Buyer makes a claim for such amount that results in a judgment against the Company,