Common use of Effect of Termination; Expenses Clause in Contracts

Effect of Termination; Expenses. (a) Magna and Charter hereby agree that, subject to Section 8.2(b) hereof, the sole remedy available to a party terminating this Agreement pursuant to Section 8.1 hereof, shall be limited to such party's right not to effect the Merger and the other transactions provided for in or contemplated by this Agreement, it being understood and agreed that subject to the provisos to this sentence and the last sentence of this Section 8.2(a), the non-terminating party shall not be deemed in breach of this Agreement; provided, however, that notwithstanding the foregoing (i) the last sentence of each of Sections 6.2(a) and 6.2(b), this Section 8.2 and Section 9.4 shall survive any termination of this Agreement and (ii) no party shall be relieved or released, as a result of such termination, from any liabilities or damages arising out of its willful breach of any provision of this Agreement; provided, further, that the right hereunder to damages shall be in lieu of the rights to an injunction or injunctions or to enforce specifically the terms and provisions hereof pursuant to Section 9.10 hereof. Moreover, any damages awarded to Magna pursuant to this Section 8.2 (a) shall be offset by any value received or realized by Magna pursuant to subparagraph (b) of this Section 8.2. (i) Notwithstanding subparagraph (a) above, if this Agreement is terminated by Magna pursuant to Section 8.1(g), or by Charter pursuant to Section 8.1, if, at the time of such termination by Charter, Magna would have had the right to terminate this Agreement pursuant to Section 8.1(g), then, in either case, Charter shall promptly, but in no event later than two business days after the date of such termination, pay to Magna, as reimbursement of Magna's direct and indirect expenses and costs, including legal, accounting and administration costs, as well as the opportunity cost to Magna of business transactions foregone as a result of its efforts to effect the Merger, a fee equal to $5 million (the "Termination Fee"). If this Agreement is terminated pursuant to Section 8.1(d) hereof by either party, then the Termination Fee shall be payable to Magna if (A) a Takeover Proposal shall have occurred prior to the meeting of Charter's stockholders referred to therein, and (B) within 12 months following such stockholders' meeting, (I) Charter shall have entered into an agreement with a third party providing for the consummation of a transaction which would constitute the subject of a Takeover Proposal, or (II) such a transaction with a third party shall have occurred. (ii) Notwithstanding the foregoing, to the extent that Charter shall be prohibited by applicable law or regulation, or by administrative actions or policy of any Governmental Entity, from satisfying in full its requirement to make the Termination Fee, it shall immediately so notify Magna and shall thereafter deliver or cause to be delivered, from time to time, to Magna, that portion of the payments required to be paid by it hereunder that it shall no longer be prohibited from paying, within five business days after the date on which Charter shall no longer be so prohibited; provided, however, that if Charter at any time shall be prohibited by applicable law or regulation, or by administrative actions or policy of any Governmental Entity, from making all or any portion of the Termination Fee required hereunder, it shall (A) use its reasonable best efforts to obtain all required regulatory and legal approvals and to file any required notices as promptly as practicable in order to make such payments, (B) within five days of the submission or receipt of any documents relating to such regulatory or legal approvals, provide Magna with copies of the same, and (C) keep Magna advised of both the status of any such request for regulatory and legal approvals, as well as any discussions with any relevant Governmental Entity or third party reasonably related to same. Nothing contained in this subparagraph (b) shall be deemed to authorize Charter to breach any provision of this Agreement.

Effect of Termination; Expenses. (a) Magna and Charter hereby agree that, subject to Section 8.2(b) hereof, In the sole remedy available to a party terminating event of the termination of this Agreement pursuant to Section 8.1 hereof10.1, this Agreement shall forthwith become void, and there shall be limited to such party's right not to effect no liability on the Merger and the other transactions provided for in or contemplated by this Agreementpart of any party hereto, it being understood and agreed that subject to the provisos to this sentence and the last sentence of this Section 8.2(a), the non-terminating party shall not be deemed in breach of this Agreement; provided, however, that notwithstanding the foregoing except (i) the last sentence of each of Sections 6.2(a) and 6.2(b)as set forth in Section 7.3, this Section 8.2 and 10.2 or Section 9.4 shall survive any termination of this Agreement 11.2 and (ii) no nothing herein shall relieve any party shall be relieved or released, as a result of such termination, from any liabilities or damages arising out of its gross negligence or willful breach of any provision of this Agreement; provided, further, that the right hereunder to damages shall be in lieu of the rights to an injunction or injunctions or to enforce specifically the terms and provisions hereof pursuant to Section 9.10 hereof. Moreover, any damages awarded to Magna pursuant to this Section 8.2 (a) shall be offset by any value received or realized by Magna pursuant to subparagraph . (b) of this Section 8.2. (i) Notwithstanding subparagraph (a) above, if If this Agreement is terminated as a result of any breach of a representation, warranty, covenant or other agreement which is caused by Magna pursuant the gross negligence or willful breach of a party hereto, such party shall be liable to Section 8.1(gthe other party for all out-of-pocket costs and expenses, including, without limitation, the reasonable fees and expenses of lawyers, accountants and investment bankers, incurred by such other party in connection with the entering into of this Agreement and the carrying out of any and all acts contemplated hereunder ("Expenses"). The payment of Expenses is not an exclusive remedy, but -------- is in addition to any other rights or remedies available to the parties hereto at law or in equity. (c) As a condition of Camden's willingness, and in order to induce Camden, to enter into this Agreement and to reimburse Camden for incurring the costs and expenses related to entering into this Agreement and consummating the transactions contemplated by this Agreement, the Bank will make a cash payment to Camden of $1,000,000 (the "Expense Fee"), or by Charter pursuant which shall be subject to Section 8.1, if, reduction ----------- at the time election of such termination by CharterCamden (as described below), Magna would have had the right to terminate if (i) Camden has terminated this Agreement pursuant to Section 8.1(g10.1(g), then, in either case, Charter shall promptly, but in no event later than two business days after the date of such termination, pay to Magna, as reimbursement of Magna's direct and indirect expenses and costs, including legal, accounting and administration costs, as well as the opportunity cost to Magna of business transactions foregone as a result of its efforts to effect the Merger, a fee equal to $5 million (the "Termination Fee"). If ii) Camden has terminated this Agreement is terminated pursuant to Section 8.1(d10.1(d) hereof by either party, then the Termination Fee shall be payable to Magna if (A) a Takeover Proposal shall have occurred prior to the meeting of Charter's stockholders referred to thereinor Section 10.1(e), and (B) within 12 months following such stockholders' meetingthe breach of the representation, (I) Charter shall have entered into an warranty, covenant or other agreement with a third party providing for was caused by the consummation gross negligence or willful misconduct of a transaction which would constitute KSB or the subject of a Takeover ProposalBank, or (IIiii) such a transaction with a third party shall have occurred. (ii) Notwithstanding KSB or the foregoing, to the extent that Charter shall be prohibited by applicable law or regulation, or by administrative actions or policy of Bank has breached any Governmental Entity, from satisfying in full its requirement to make the Termination Fee, it shall immediately so notify Magna and shall thereafter deliver or cause to be delivered, from time to time, to Magna, that portion of the payments required to be paid by it hereunder that it shall no longer be prohibited from paying, within five business days after the date on which Charter shall no longer be so prohibitedprovisions of Section 8.5; provided, however, that -------- ------- Camden shall not be entitled to receive the Expense Fee if Charter at either Camden or CASI has failed to fulfill any time shall be prohibited by applicable law or regulationmaterial obligation under this Agreement and such failure has been the cause of, or resulted in, the termination of this Agreement pursuant to Section 10. 1. Notwithstanding anything herein or in the KSB Option Agreement to the contrary, in no event shall the aggregate amount of the Expense Fee actually paid to Camden and the Total Profit (as defined in the KSB Option Agreement) actually received by administrative actions Camden upon exercise or policy waiver of any Governmental Entityof its rights under the KSB Option Agreement exceed $1,400,000 (the "Maximum Fee"). In ----------- the event that Camden would be entitled to receive, from making all pursuant to the terms of the preceding sentence and/or the KSB Option Agreement, an aggregate amount that exceeds the Maximum Fee, Camden may elect, in its sole discretion, to (y) reduce the Expense Fee payable by KSB to Camden, or any (z) relinquish a portion of the Termination Option or Option Shares (as such terms are defined in the KSB Option Agreement), or elect to effect any combination of clause y or clause z above, such that the -------- -------- aggregate of the Expense Fee payable to Camden and the Total Profit receivable by Camden would not exceed the Maximum Fee. Any payment required hereunder, it shall under this Section 10.2(c) will be (Ai) use its reasonable best efforts payable by KSB and the Bank to obtain all required regulatory and legal approvals and Camden (by wire transfer of immediately available funds to file any required notices as promptly as practicable in order to make such payments, (Ban account designated by Camden) within five business days after demand by Camden and (ii) net of any other payments made by KSB and the Bank to Camden pursuant to the provisions of Section 10.2(b). (d) Except as otherwise provided in this Section 10.2, all costs and expenses incurred in connection with this Agreement, the Bank Merger Agreements and the transactions contemplated hereby and thereby shall be paid by the party incurring such expenses, whether or not any of the submission or receipt of any documents relating to such regulatory or legal approvals, provide Magna with copies of the same, and (C) keep Magna advised of both the status of any such request for regulatory and legal approvals, as well as any discussions with any relevant Governmental Entity or third party reasonably related to same. Nothing contained in transactions contemplated by this subparagraph (b) shall be deemed to authorize Charter to breach any provision of this AgreementAgreement is consummated.

Effect of Termination; Expenses. (a) Magna and Charter hereby agree that, subject to Section 8.2(b) hereof, In the sole remedy available to a party terminating event of the termination of this Agreement pursuant to Section 8.1 hereof10.1, this Agreement shall forthwith become void, and there shall be limited to such party's right not to effect no liability on the Merger and the other transactions provided for in or contemplated by this Agreementpart of any party hereto, it being understood and agreed that subject to the provisos to this sentence and the last sentence of this Section 8.2(a), the non-terminating party shall not be deemed in breach of this Agreement; provided, however, that notwithstanding the foregoing except (i) the last sentence of each of Sections 6.2(a) and 6.2(b)as set forth in Section 7.3, this Section 8.2 and 10.2 or Section 9.4 shall survive any termination of this Agreement 11.2 and (ii) no nothing herein shall relieve any party shall be relieved or released, as a result of such termination, from any liabilities or damages arising out of its gross negligence or willful breach of any provision of this Agreement; provided, further, that the right hereunder to damages shall be in lieu of the rights to an injunction or injunctions or to enforce specifically the terms and provisions hereof pursuant to Section 9.10 hereof. Moreover, any damages awarded to Magna pursuant to this Section 8.2 (a) shall be offset by any value received or realized by Magna pursuant to subparagraph . (b) of this Section 8.2. (i) Notwithstanding subparagraph (a) above, if If this Agreement is terminated as a result of any breach of a representation, warranty, covenant or other agreement which is caused by Magna pursuant the gross negligence or willful breach of a party hereto, such party shall be liable to Section 8.1(gthe other party for all out-of-pocket costs and expenses, including, without limitation, the reasonable fees and expenses of lawyers, accountants and investment bankers, incurred by such other party in connection with the entering into of this Agreement and the carrying out of any and all acts contemplated hereunder ("Expenses"). The payment of Expenses is not an exclusive remedy, but is in addition to any other rights or remedies available to the parties hereto at law or in equity. (c) As a condition of Camden's willingness, and in order to induce Camden, to enter into this Agreement and to reimburse Camden for incurring the costs and expenses related to entering into this Agreement and consummating the transactions contemplated by this Agreement, the Bank will make a cash payment to Camden of $1,000,000 (the "Expense Fee"), or by Charter pursuant which shall be subject to Section 8.1, if, reduction at the time election of such termination by CharterCamden (as described below), Magna would have had the right to terminate if (i) Camden has terminated this Agreement pursuant to Section 8.1(g10.1(g), then, in either case, Charter shall promptly, but in no event later than two business days after the date of such termination, pay to Magna, as reimbursement of Magna's direct and indirect expenses and costs, including legal, accounting and administration costs, as well as the opportunity cost to Magna of business transactions foregone as a result of its efforts to effect the Merger, a fee equal to $5 million (the "Termination Fee"). If ii) Camden has terminated this Agreement is terminated pursuant to Section 8.1(d10.1(d) hereof by either party, then the Termination Fee shall be payable to Magna if (A) a Takeover Proposal shall have occurred prior to the meeting of Charter's stockholders referred to thereinor Section 10.1(e), and (B) within 12 months following such stockholders' meetingthe breach of the representation, (I) Charter shall have entered into an warranty, covenant or other agreement with a third party providing for was caused by the consummation gross negligence or willful misconduct of a transaction which would constitute KSB or the subject of a Takeover ProposalBank, or (IIiii) such a transaction with a third party shall have occurred. (ii) Notwithstanding KSB or the foregoing, to the extent that Charter shall be prohibited by applicable law or regulation, or by administrative actions or policy of Bank has breached any Governmental Entity, from satisfying in full its requirement to make the Termination Fee, it shall immediately so notify Magna and shall thereafter deliver or cause to be delivered, from time to time, to Magna, that portion of the payments required to be paid by it hereunder that it shall no longer be prohibited from paying, within five business days after the date on which Charter shall no longer be so prohibitedprovisions of Section 8.5; provided, however, that Camden shall not be entitled to receive the Expense Fee if Charter at either Camden or CASI has failed to fulfill any time shall be prohibited by applicable law or regulationmaterial obligation under this Agreement and such failure has been the cause of, or resulted in, the termination of this Agreement pursuant to Section 10. 1. Notwithstanding anything herein or in the KSB Option Agreement to the contrary, in no event shall the aggregate amount of the Expense Fee actually paid to Camden and the Total Profit (as defined in the KSB Option Agreement) actually received by administrative actions Camden upon exercise or policy waiver of any Governmental Entityof its rights under the KSB Option Agreement exceed $1,400,000 (the Maximum Fee ). In the event that Camden would be entitled to receive, from making all pursuant to the terms of the preceding sentence and/or the KSB Option Agreement, an aggregate amount that exceeds the Maximum Fee, Camden may elect, in its sole discretion, to (y) reduce the Expense Fee payable by KSB to Camden, or any (z) relinquish a portion of the Termination Option or Option Shares (as such terms are defined in the KSB Option Agreement), or elect to effect any combination of clause y or clause z above, such that the aggregate of the Expense Fee payable to Camden and the Total Profit receivable by Camden would not exceed the Maximum Fee. Any payment required hereunder, it shall under this Section 10.2(c) will be (Ai) use its reasonable best efforts payable by KSB and the Bank to obtain all required regulatory and legal approvals and Camden (by wire transfer of immediately available funds to file any required notices as promptly as practicable in order to make such payments, (Ban account designated by Camden) within five business days after demand by Camden and (ii) net of any other payments made by KSB and the Bank to Camden pursuant to the provisions of Section 10.2(b). (d) Except as otherwise provided in this Section 10.2, all costs and expenses incurred in connection with this Agreement, the Bank Merger Agreements and the transactions contemplated hereby and thereby shall be paid by the party incurring such expenses, whether or not any of the submission or receipt of any documents relating to such regulatory or legal approvals, provide Magna with copies of the same, and (C) keep Magna advised of both the status of any such request for regulatory and legal approvals, as well as any discussions with any relevant Governmental Entity or third party reasonably related to same. Nothing contained in transactions contemplated by this subparagraph (b) shall be deemed to authorize Charter to breach any provision of this AgreementAgreement is consummated.

Effect of Termination; Expenses. (a) Magna and Charter hereby agree that, subject to Section 8.2(b) hereof, In the sole remedy available to a party terminating event of the termination of this Agreement pursuant to Section 8.1 hereof8.01, this Agreement shall forthwith become void, and there shall be limited to such party's right not to effect no liability on the Merger and the other transactions provided for in or contemplated by this Agreementpart of any party hereto, it being understood and agreed that subject to the provisos to this sentence and the last sentence of this Section 8.2(a), the non-terminating party shall not be deemed in breach of this Agreement; provided, however, that notwithstanding the foregoing except (i) the last sentence of each of Sections 6.2(a) and 6.2(b), this as set forth in Section 8.2 and Section 9.4 shall survive any termination of this Agreement 9.03 and (ii) no nothing herein shall relieve any party shall be relieved or released, as a result of such termination, from any liabilities or damages arising out of its gross negligence or willful breach of any provision of this Agreement; provided, further, that the right hereunder to damages shall be in lieu of the rights to an injunction or injunctions or to enforce specifically the terms and provisions hereof pursuant to Section 9.10 hereof. Moreover, any damages awarded to Magna pursuant to this Section 8.2 (a) shall be offset by any value received or realized by Magna pursuant to subparagraph . (b) If this Agreement is terminated as a result of any breach of a representation, warranty, covenant or other agreement which is caused by the gross negligence or willful breach of a party hereto, such party shall be liable to the other party for all out-of-pocket costs and expenses, including, without limitation, the reasonable fees and expenses of lawyers, accountants and investment bankers, incurred by such other party in connection with the entering into of this Section 8.2Agreement and the carrying out of any and all acts contemplated hereunder ("Expenses"). The payment of Expenses is not an exclusive remedy, but is in addition to any other rights or remedies available the parties hereto at law or in equity. (c) As a condition of Purchaser's willingness, and in order to induce Purchaser, to enter into this Agreement and to reimburse Purchaser for incurring the costs and expenses related to entering into this Agreement and consummating the transactions contemplated by this Agreement, the Bank will make a cash payment to Purchaser of $500,000 (the "Expense Fee") if and only if: (i) Notwithstanding subparagraph (ax) Purchaser or the Company and the Bank has terminated this Agreement pursuant to Section 8.01(f), or (y) Purchaser has terminated this Agreement pursuant to Section 8.01(g), or (z) Purchaser has terminated this Agreement pursuant to Sections 8.01(d) or 8.01(e) and the breach of the representation, warranty, covenant or agreement was caused by the willful conduct or gross negligence of the Company or the Bank, and (ii) (x) within twelve months of any such termination or other event specified in (i) above, if this Agreement is terminated by Magna pursuant (A) the Company or the Bank shall have entered into an agreement to Section 8.1(g)engage in an Acquisition Transaction (as hereinafter defined) with any person other than Purchaser or any affiliate of Purchaser or (B) the Company Board or any committee thereof shall have authorized, approved, recommended, publicly proposed or failed to publicly oppose an Acquisition Transaction or recommended that stockholders of the Company authorize, approve or accept any Acquisition Transaction with any person other than Purchaser or any affiliate of Purchaser, or by Charter pursuant to Section 8.1, if(y) in the case of Sections 8.01(f) or 8.01(g), at the time of such termination by Charter, Magna would have had the right or event giving rise to terminate this Agreement pursuant to Section 8.1(g), then, in either case, Charter shall promptly, but in no event later than two business days after the date of such termination, pay it shall have been publicly announced that any person (other than Purchaser or any affiliate of Purchaser) shall have (A) made, or disclosed an intention to Magna, as reimbursement of Magna's direct and indirect expenses and costs, including legal, accounting and administration costs, as well as the opportunity cost to Magna of business transactions foregone as a result of its efforts to effect the Mergermake, a fee equal bona tide offer to $5 million engage in an Acquisition Transaction, or (B) filed an application (or given a notice), whether in draft or final form, under the BHC Act or the Change in Bank Control Act of 1978, for approval to engage in an Acquisition Transaction. If the Expense Fee is to be paid, it shall be subject to an upward adjustment as set forth below: In the event that the per share consideration to the Company, to the Bank or to the stockholders of the Bank (including any dividend or distribution following a sale of assets) in an Acquisition Transaction contemplated by Section 8.02(c)(ii)(x) above (the "Termination FeeAcquisition Consideration"). If this Agreement is terminated pursuant to Section 8.1(d) hereof by either partyexceeds the Fixed Consideration, then the Termination Expense Fee shall be payable to Magna if (A) a Takeover Proposal shall have occurred prior increased by an amount equal to the meeting product of Charter's stockholders referred to therein, and 738,528 (Bthe "Number") within 12 months following such stockholders' meeting, (I) Charter shall have entered into an agreement with a third party providing for multiplied by the consummation excess of a transaction which would constitute the subject of a Takeover Proposal, or (II) such a transaction with a third party shall have occurred. (ii) Notwithstanding Acquisition Consideration over the foregoing, to the extent that Charter Fixed Consideration. The Number shall be prohibited by applicable law or regulation, or by administrative actions or policy subject to equitable and proportionate adjustment in the event of any Governmental Entitychange in Company Common Stock by reason of any stock issuance, from satisfying in full its requirement to make stock dividend, stock split, split-up, recapitalization, combination, exchange of shares or similar transaction such that the Termination Fee, it Number shall immediately so notify Magna and shall thereafter deliver or cause to be delivered, from time to time, to Magna, that portion equal 19.99% of the payments Company Common Stock then outstanding after the occurrence of any such event. The Fixed Consideration shall also be subject to equitable and proportionate adjustment in the event of any change in Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, combination, exchange of shares or similar transaction. Any payment required under this Section B.02(c) will be (i) payable by the Company and the Bark to be paid Purchaser (by it hereunder that it shall no longer be prohibited from paying, wire transfer of immediately available funds to an account designated by Purchaser) within five business days after the date on which Charter shall no longer be so prohibited; provided, however, that if Charter at any time shall be prohibited demand by applicable law or regulation, or by administrative actions or policy Purchaser and (ii) net of any Governmental Entity, from making all or any portion other payments made by the Company and the Bank to Purchaser pursuant to the provisions of Section 8.02(b). In the Termination Fee required hereunder, it shall (A) use its reasonable best efforts to obtain all required regulatory and legal approvals and to file any required notices as promptly as practicable in order to make such paymentsevent of a termination under circumstances that would trigger a payment under this Section 8.02(c), (Bi) within five days in the absence of the submission gross negligence or receipt willful breach of any documents relating to such regulatory or legal approvals, provide Magna with copies of the same, and (C) keep Magna advised of both the status of any such request for regulatory and legal approvals, as well as any discussions with any relevant Governmental Entity or third party reasonably related to same. Nothing contained in this subparagraph (b) shall be deemed to authorize Charter to breach any provision of this AgreementAgreement by the Company, the Bank or any of their subsidiaries, this Section 8.02(c) shall be the exclusive remedy of Purchaser, and (ii) any standstill provisions contained in the Confidentiality Agreement shall terminate.