Common use of Expenses and Termination Fees Clause in Contracts

Expenses and Termination Fees. (i) Subject to Section 8(b) and subsections (ii) and 8(c)(iii) of this Section 8(c), whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement, the Merger, and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the Party incurring such expense, except that expenses incurred in connection with the filing and printing the proxy materials and the Proxy Statement/Prospectus, registration and filing fees incurred in connection with the Proxy Statement/Prospectus and the HSR Act shall be shared equally by Andrx and Mediconsult. (ii) In the event that this Agreement is terminated pursuant to Section 8(a)(ii)(B), 8(a)(iv), or 8(a)(v) or the Board of Directors of Mediconsult changes or withdraws or modifies its recommendation of this Agreement or the Merger or any transaction contemplated hereby in a manner adverse to or shall have resolved to do any of the foregoing and within 12 months of the date of this Agreement, Mediconsult sells the capital stock of Physicians Online or substantially all its assets, the transaction substantially contemplated by the Takeover Proposal is consummated, or Mediconsult consummates a financing transaction or series of related financing transactions with net proceeds equal to or greater than $7,500,000, Mediconsult shall pay Andrx an amount equal to $1,000,000 by wire transfer to an account designated by Andrx (the "Cash Breakup Fee") and issue a warrant, in a form substantially similar to that attached hereto as Exhibit D, to purchase 19.9% of the then outstanding shares of Mediconsult Common Stock on a fully diluted basis (the "Breakup Warrant") with an exercise price of $0.125 per share. The Cash Breakup Fee and Breakup Warrant shall be due and payable within five business days of the consummation of any of the transactions mentioned in the previous sentence. Andrx understands and agrees that the sum of the consideration of the Cash Breakup Fee and Breakup Warrant shall not exceed the maximum consideration permitted under the DGCL. (iii) In the event that this Agreement is terminated pursuant to Section 8(a)(ii)(A) or 8(a)(iii)(A), the non-terminating Party shall pay to and reimburse the terminating Party the actual out-of-pocket expenses incurred by the terminating Party in connection with this Agreement and the transactions contemplated hereby by wire transfer to an account designated by the terminating Party within five business days from the non-terminating Party's receipt of a statement from the terminating Party indicating the amount of such out-of-pocket expenses that have been incurred. In addition, in the event this Agreement has been terminated pursuant to Section 8(a)(ii)(A) or 8(a)(iii)(A) as a result of a nonwillful material breach of or failure to perform the provisions of this Agreement by the non-terminating Party, the terminating Party shall have the right to recover any damages arising from such nonwillful breach or failure to perform.

Expenses and Termination Fees. (ia) Subject to Section 8(b) and subsections (ii) and 8(c)(iii) of Except as set forth in this Section 8(c), whether or not the Merger is consummated7.3, all costs fees and expenses incurred in connection with this Agreement, the Merger, and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the Party incurring such expense, except that expenses incurred in connection with the filing and printing the proxy materials and the Proxy Statement/Prospectus, registration and filing fees incurred in connection with the Proxy Statement/Prospectus and the HSR Act shall be shared equally by Andrx and Mediconsult. (ii) In the event that this Agreement is terminated pursuant to Section 8(a)(ii)(B), 8(a)(iv), or 8(a)(v) or the Board of Directors of Mediconsult changes or withdraws or modifies its recommendation of this Agreement or the Merger or any transaction contemplated hereby in a manner adverse to or shall have resolved to do any of the foregoing and within 12 months of the date of this Agreement, Mediconsult sells the capital stock of Physicians Online or substantially all its assets, the transaction substantially contemplated by the Takeover Proposal is consummated, or Mediconsult consummates a financing transaction or series of related financing transactions with net proceeds equal to or greater than $7,500,000, Mediconsult shall pay Andrx an amount equal to $1,000,000 by wire transfer to an account designated by Andrx (the "Cash Breakup Fee") and issue a warrant, in a form substantially similar to that attached hereto as Exhibit D, to purchase 19.9% of the then outstanding shares of Mediconsult Common Stock on a fully diluted basis (the "Breakup Warrant") with an exercise price of $0.125 per share. The Cash Breakup Fee and Breakup Warrant shall be due and payable within five business days of the consummation of any of the transactions mentioned in the previous sentence. Andrx understands and agrees that the sum of the consideration of the Cash Breakup Fee and Breakup Warrant shall not exceed the maximum consideration permitted under the DGCL. (iii) In the event that this Agreement is terminated pursuant to Section 8(a)(ii)(A) or 8(a)(iii)(A), the non-terminating Party shall pay to and reimburse the terminating Party the actual out-of-pocket expenses incurred by the terminating Party in connection with this Agreement and the transactions contemplated hereby by wire transfer to an account designated shall be paid by the terminating Party within five business days from party incurring such expenses, whether or not the non-terminating Party's receipt Merger is consummated; provided, however, that Olicom and CrossComm shall share equally all fees and expenses, other than investment banking, attorneys' and accountants' fees and expenses, incurred in connection with the printing and filing of a statement from the terminating Party indicating Joint Proxy Statement (including any related preliminary materials) and the amount Registration Statement (including financial statements and exhibits) and any amendments or supplements. (b) CrossComm shall reimburse Olicom for all of such out-of-pocket its reasonable, documented expenses that have been incurred. In addition, in actually incurred relating to the event transactions contemplated by this Agreement has been terminated prior to termination (including reasonable, documented fees and expenses of Olicom's counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors) upon the earliest to occur of the following events: (i) The termination of this Agreement by Olicom pursuant to Section 8(a)(ii)(A) or 8(a)(iii)(A7.1(d) as a result of a nonwillful material breach of or the failure to perform receive the provisions requisite vote for approval of this Agreement and the Merger by the stockholders of CrossComm at the (ii) The termination of this Agreement by Olicom pursuant to Section 7.1(f); (iii) The termination of this Agreement by CrossComm pursuant to Section 7.1(g); or (iv) The termination of this Agreement by Olicom pursuant to Section 7.1(h) after a material breach of this Agreement by CrossComm. (c) Olicom shall reimburse CrossComm for all of its reasonable, documented expenses actually incurred relating to the non-terminating Partytransactions contemplated by this Agreement prior to termination (including reasonable, documented fees and expenses of CrossComm's counsel, accountants and financial advisors, but excluding any discretionary fees paid to such financial advisors) upon the earliest to occur of the following events: (i) The termination of this Agreement by CrossComm pursuant to Section 7.1(e); or (ii) The termination of this Agreement by CrossComm pursuant to Section 7.1(h) after a material breach of this Agreement by Olicom. (d) CrossComm shall pay Olicom as liquidated damages and not as a penalty or forfeiture, a termination fee of $2,360,000 upon the earliest to occur of the following events: (i) The termination of this Agreement by Olicom pursuant to Section 7.1(d) as a result of the failure to receive the requisite vote for approval of this Agreement and the Merger by the stockholders of CrossComm at the CrossComm Stockholders' Meeting if, at the time of such failure, there shall have been announced an Alternative Transaction which shall not have been absolutely and unconditionally withdrawn and abandoned and with respect to which the CrossComm Board shall not have recommended that the stockholders of CrossComm not vote to accept. (ii) The termination of this Agreement by Olicom pursuant to Section 7.1(f); or (iii) The termination of this Agreement by CrossComm pursuant to Section 7.1(g). (e) The reasonable, documented expenses and fees, if applicable, payable pursuant to Sections 7.3(b), 7.3(c), 7.3(d)(i) or 7.3(d)(ii) shall be paid by wire transfer within three business days after the first to occur of the events described therein; provided that, in no event shall Olicom or CrossComm, as the case may be, be required to pay any expenses or termination fees, if applicable, to the other, if, immediately prior to the termination of this Agreement, the terminating Party party to receive the expenses, termination fees and other payment, if applicable, was in breach of any of its material obligations under this Agreement in any manner that shall have the right proximately contributed to recover any damages arising from such nonwillful breach action or failure to performact on the part of the other party which gives rise to the right of termination. In the event that Olicom is required to file suit to seek all or any portion of the termination fee described in Section 7.3(d), and it is the prevailing party therein, Olicom shall be entitled to all expenses, including reasonable, documented attorneys' fees and expenses, which it incurs in enforcing its rights hereunder. (f) As used in this Agreement, "Alternative Transaction" means either (i) a transaction pursuant to which any person (or group of persons), other than Olicom or its affiliates (a "Third Party"), acquires more than 25% of the outstanding shares of CrossComm Common Stock, pursuant to a tender offer or exchange offer or otherwise, (ii) a merger or other business combination involving CrossComm pursuant to which any Third Party acquires more than 25% of the outstanding equity securities of CrossComm or the entity surviving such merger or business combination, (iii) any other transaction pursuant to which any Third Party acquires control of assets (including for this purpose the outstanding equity securities of subsidiaries of CrossComm, and the entity surviving any merger or business combination including any of them) of CrossComm having a fair market value equal to more than 20% of the fair market value of all the assets of CrossComm immediately prior to such transaction, or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.

Expenses and Termination Fees. (ia) Subject to Section 8(bsubsections 11.3(b), (c) and subsections (iid) and 8(c)(iii) of this Section 8(c), below whether or not the Merger Arrangement is consummated, all costs and expenses incurred in connection with this Agreement, the Merger, Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the Party party incurring such expense, except that expenses incurred in connection with the filing and printing the proxy materials and the Proxy Statement/ProspectusCircular, registration and filing fees incurred in connection with the Proxy Statement/Prospectus Circular and legal fees relating to the HSR Act Circular shall be shared equally by Andrx MGI and MediconsultDiscreet. (iib) In the event that this Agreement is terminated addition to any amount payable pursuant to Section 8(a)(ii)(Bsubsection 11.3(d), 8(a)(iv), or 8(a)(v) or the Board of Directors of Mediconsult changes or withdraws or modifies its recommendation of this Agreement or the Merger or any transaction contemplated hereby in a manner adverse MGI agrees to or shall have resolved to do any of the foregoing and within 12 months of the date of this Agreement, Mediconsult sells the capital stock of Physicians Online or substantially reimburse Discreet for all its assets, the transaction substantially contemplated by the Takeover Proposal is consummated, or Mediconsult consummates a financing transaction or series of related financing transactions with net proceeds equal to or greater than $7,500,000, Mediconsult shall pay Andrx an amount equal to $1,000,000 by wire transfer to an account designated by Andrx (the "Cash Breakup Fee") and issue a warrant, in a form substantially similar to that attached hereto as Exhibit D, to purchase 19.9% of the then outstanding shares of Mediconsult Common Stock on a fully diluted basis (the "Breakup Warrant") with an exercise price of $0.125 per share. The Cash Breakup Fee and Breakup Warrant shall be due and payable within five business days of the consummation of any of the transactions mentioned in the previous sentence. Andrx understands and agrees that the sum of the consideration of the Cash Breakup Fee and Breakup Warrant shall not exceed the maximum consideration permitted under the DGCL. (iii) In the event that this Agreement is terminated pursuant to Section 8(a)(ii)(A) or 8(a)(iii)(A), the non-terminating Party shall pay to and reimburse the terminating Party the actual out-of-pocket costs and expenses incurred by the terminating Party Discreet in connection with this Agreement and the transactions contemplated hereby by wire transfer (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel) up to an account designated by the terminating Party within five business days from sum of US$1,000,000, provided that Discreet is not in material breach of any representation, warranty, covenant or agreement contained in this Agreement, in the non-terminating Party's receipt of event that: (i) Discreet or MGI terminates this Agreement in accordance with subsection 11.1(d); or (ii) Discreet terminates this Agreement in accordance with subsection 11.1(b); or (iii) Discreet terminates this Agreement in accordance with subsection 11.1(f) in circumstances where there is a statement from the terminating Party indicating the amount of such Competing Transaction. (c) Discreet agrees to reimburse MGI for all out-of-pocket costs and expenses incurred by MGI in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel) up to the sum of US$1,000,000, provided that have been incurred. In additionMGI is not in material breach of any representation, warranty, covenant or agreement contained in this Agreement, in the event that MGI terminates this Agreement has been in accordance with subsection 11.1(b). (d) MGI shall pay Discreet (in addition to any amounts payable under subparagraph (b) above) the sum of US$4,500,000 in the event that this Agreement is terminated in accordance with subsection 11.1(d) or 11.1(f), in each case in circumstances where there is an Alternative Proposal, and prior to such termination or within twelve months after the date of such termination MGI enters into a definitive amalgamation agreement or other business combination agreement regarding a Competing Transaction or Alternative Proposal or recommends that MGI Shareholders tender their MGI Common Shares in response to a tender or exchange related to a Competing Transaction or Alternative Proposal, or resolves to do any of the foregoing; provided, however, that solely for the purposes of this Section 11.3(d), the term Alternative Proposal shall have the meaning assigned to it in Section 1.1 except that the words "20% or more" in subsections (ii) and (iii) of such definition shall be deemed to be "more than 50%". (e) All amounts payable pursuant to this Section 8(a)(ii)(A11.3 shall be paid within one Business Day after the event triggering the applicable payment obligation. (f) Each party acknowledges and agrees that if any amount is paid to Discreet by MGI pursuant to subsections 11.3(b)(i) or 8(a)(iii)(A(iii) or pursuant to subsection 11.3(d), the amount or amounts so paid are in lieu of any damages or any other payment which Discreet may be entitled to and shall constitute payments of liquidated damages which are a genuine estimate of the damages which Discreet will suffer or incur as a result of the event giving rise to such damages and resultant termination of this Agreement and are not penalties. MGI irrevocably waives any right it may have to raise as a nonwillful material defence that any such liquidated damages are excessive or punitive. For greater certainty, the parties agree that the payment of any amount pursuant to such subsections is the sole monetary remedy available to Discreet and Discreet shall not have any alternative right or remedy against MGI, including pursuant to subsection 11.3(g). (g) Each party acknowledges and agrees that the payment of any amount to Discreet by MGI pursuant to subsection 11.3(b)(ii) or to MGI by Discreet pursuant to subsection 11.3(c) shall not relieve or have the effect of relieving the party making such payment in any way from liability for damages incurred or suffered by the other party as a result of the breach of or failure to perform the provisions of this Agreement by the non-terminating Partyparty making such payment (which damages may include, but shall not be restricted by, any amount paid pursuant to subsection 11.3(b)(ii) or subsection 11.3(c)) , whether or not such liability resulted from the terminating Party shall have the right to recover any damages arising from such nonwillful wilful breach or failure to performbad faith of the party making such payment.

Expenses and Termination Fees. (ia) Subject to Section 8(bsubsections (b), (c), (d) and subsections (ii) and 8(c)(iiie) of this Section 8(c)8.3, whether or not the Merger transactions contemplated by this Agreement is consummated, all costs and expenses incurred in connection with this Agreement, the Merger, Agreement and the transactions contemplated hereby (including, without limitation, including the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the Party incurring such expense, except that expenses incurred in connection with the filing and printing the proxy materials and the Proxy Statement/Prospectus, registration and filing fees incurred in connection with the Proxy Statement/Prospectus and the HSR Act shall be shared equally by Andrx and Mediconsult. (iib) In the event that (i) Buyer terminates this Agreement is terminated pursuant to Section 8(a)(ii)(B), 8(a)(iv8.1(e) or FHI terminates this Agreement pursuant to Section 8.1(f), or 8(a)(v(ii) or the Board of Directors of Mediconsult changes or withdraws or modifies its recommendation of Buyer terminates this Agreement or the Merger or any transaction contemplated hereby in a manner adverse to or shall have resolved to do any of the foregoing and within 12 months of the date of this Agreement, Mediconsult sells the capital stock of Physicians Online or substantially all its assets, the transaction substantially contemplated by the Takeover Proposal is consummated, or Mediconsult consummates a financing transaction or series of related financing transactions with net proceeds equal to or greater than $7,500,000, Mediconsult shall pay Andrx an amount equal to $1,000,000 by wire transfer to an account designated by Andrx (the "Cash Breakup Fee") and issue a warrant, in a form substantially similar to that attached hereto as Exhibit D, to purchase 19.9% of the then outstanding shares of Mediconsult Common Stock on a fully diluted basis (the "Breakup Warrant") with an exercise price of $0.125 per share. The Cash Breakup Fee and Breakup Warrant shall be due and payable within five business days of the consummation of any of the transactions mentioned in the previous sentence. Andrx understands and agrees that the sum of the consideration of the Cash Breakup Fee and Breakup Warrant shall not exceed the maximum consideration permitted under the DGCL. (iii) In the event that this Agreement is terminated pursuant to Section 8(a)(ii)(A8.1(c) due in whole or 8(a)(iii)(A)in part to any failure by the Selling Shareholders or FHI to use its or their reasonable best efforts to perform and comply with all agreements and conditions required by this Agreement to be performed or complied with by the Selling Shareholders or FHI prior to or on the Closing Date or any failure by the Selling Shareholders' or FHI's Affiliates to take any actions required to be taken hereby, the non-terminating Party and prior thereto there shall pay have been a Takeover Proposal with respect to FHI that shall not have been rejected by Davis and reimburse the terminating Party the actual FHI, then Davis and FHI jointly and severally shall reixxxxxe Buyer for all xx xhe out-of-pocket expenses costs and expenses, up to an aggregate of $50,000, incurred by the terminating Party Buyer in connection with this Agreement and the transactions contemplated hereby by wire transfer (including the fees and expenses of its financial advisors, accountants and outside legal counsel), and, in addition to an account designated by any other remedies Buyer may have, Davis and FHI jointly and severally shall pay to Buyer the terminating Party within five sum of $000,000 no later than two (2) business days from the non-terminating Party's receipt of a statement from the terminating Party indicating the amount of such out-of-pocket expenses that have been incurred. thereafter. (c) In addition, in the event that (i) Buyer terminates this Agreement has been terminated pursuant to Section 8(a)(ii)(A) or 8(a)(iii)(A8.1(c) as a result of a nonwillful material breach by FHI or Davis and under circumstances not described in Section 8.3(b)(ii), Xxxis and FHI, jointly and severally, shall promptly reimburse Buyer for all out-of-pocket costs and expenses, up to an aggregate of $50,000 incurred by Buyer in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its financial advisors, accountants and outside legal counsel); and, in the event (A) any Takeover Proposal is consummated (as defined in Section 8.3(f)) by or failure with any Person that made a Takeover Proposal prior to perform the provisions termination of this Agreement or any Affiliate of any such Person, within twelve months of the later of, or (B) any other Takeover Proposal not described in clause (A) is consummated (as defined in Section 8.3(f)) within six months of the later of, (x) such termination of this Agreement, and (y) the payment of the above described expenses, Davis and FHI, jointly and severally shall pay to Buyer the additxxxxx sum of $250,000 (less any amounts paid by FHI to Buyer under Section 8.3(b)) no later than two (2) business days thereafter. (d) In the nonevent Davis terminates this Agreement pursuant to Section 8.1(d), Buyer xxxxl promptly reimburse FHI for all of the out-terminating Partyof-pocket costs and expenses, up to an aggregate of $50,000, incurred by FHI in connection with this Agreement and the terminating Party shall have transactions contemplated hereby (including the right to recover fees and expenses of its financial advisors, accountants and outside legal counsel). (e) As used herein, "Takeover Proposal" means any damages arising from such nonwillful breach offer or failure to performproposal for, or any indication of interest in, a merger or other business combination involving FHI or any of its Subsidiaries or the acquisition of 20% or more of the outstanding shares of capital stock of FHI, or a significant portion of the assets of, FHI or any of its Subsidiaries, other than the transactions contemplated by this Agreement.