Common use of Expenses; Termination Fee Clause in Contracts

Expenses; Termination Fee. (a) Except as provided in Section 8.3(b) and 8.3 (c) of this Agreement, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. (b) If: (i) (x) Parent or Purchaser terminates this Agreement pursuant to Section 8.1(c), 8.1(i) or 8.1(k), or the Company terminates this Agreement pursuant to Section 8.1(d), in either case, in circumstances when, prior to such termination any third party shall have acquired beneficial ownership of 20% or more of the outstanding shares of Company Common Stock (or any person or group with a Schedule 13D or 13G on file with the SEC (including the shareholders party to the Tender and Option Agreement except as expressly permitted in that agreement) shall have acquired beneficial ownership of additional shares of any class or series of capital stock of the Company (including Company Common Stock), through the acquisition of stock, the formation of a group or otherwise, which together with the shares of capital stock of the Company previously beneficially owned by such person or group, constitutes 20% or more of any such class or series, or shall have been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of additional shares of any class or series of capital stock of the Company (including the Company Common Stock) which together with the shares of capital stock of the Company previously beneficially owned by such person or group, constitutes 20% or more of any such class or series (it being understood that the execution of the Tender and Option Agreement by the Company shareholders that are parties thereto and the performance of their obligations thereunder shall not, in itself, be deemed to constitute such an acquisition of beneficial ownership triggering this provision)) or shall have made or consummated or announced an intention to make or consummate an Acquisition Proposal (or with respect to any proposal that may be existing on the date hereof, not withdrawn such Acquisition Proposal) or (y) Parent or Purchaser terminates this Agreement pursuant to Section 8.1(g), and, in any such case described in clauses (x) or (y) in this Section 8.3(b)(i), within 12 months after such termination the Company or any of its subsidiaries enters into or publicly announces an intention to enter into a definitive agreement with respect to an Acquisition Proposal, or consummates or publicly announces an intention to consummate an Acquisition Proposal; (ii) Parent or Purchaser terminates this Agreement pursuant to (x) clauses (i) or (ii) of Section 8.1(e) as a result of a willful and material breach of this Agreement by the Company or any material breach of Section 6.1 (whether or not willful), (y) clauses (iii) or (iv) of Section 8.1(e) or (z) Section 8.1(h); (iii) the Company terminates this Agreement pursuant to Section 8.1(f) in circumstances when Parent or Purchaser shall also have the right to terminate this Agreement pursuant to the circumstances described in Section 8.3(b)(i) or 8.3(b)(ii); or (iv) the Company terminates this Agreement pursuant to Section 8.1(j) then, in each case, the Company shall pay to Parent, within two business days following the execution and delivery of such agreement or such occurrence, as the case may be, or prior to or simultaneously with such termination by the Company as contemplated by 8.3(b)(i), (b)(iii) or (b)(iv), a fee, in cash, of $1.1 million (a “Termination Fee”); provided, that the Company in no event shall be obligated to pay more than one such Termination Fee with respect to all such agreements and occurrences and such termination. Any payment required to be made pursuant to this subsection (b) shall be made to Parent by wire transfer of immediately available funds to an account designated by Parent. The provisions of this Section 8.3 shall not derogate from any other rights or remedies which Parent or Purchaser may possess under this Agreement (including as provided in Section 9.3) or under applicable law, and the payment of the Termination Fee shall not be deemed to constitute liquidated damages. (c) Subject to and without limiting the rights set forth in Section 9.3, if a party breaches this Agreement and such breach is not a material and willful breach by the breaching party or a material breach by the Company of Section 6.1 of this Agreement whether or not such breach is willful, the breaching party shall not be liable in any amount in excess of the non-breaching party’s reasonable costs and expenses incurred in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of counsel, accountants, investment bankers, printers, experts and consultants to the non-breaching party and its affiliates (collectively, the “Expenses”), except to the extent that a Termination Fee is payable pursuant to Section 8.3(b) (which shall be payable in addition to any amount owing under this Section 8.3(c)); provided, however, that in no event shall Expenses payable pursuant to this Section 8.3(c) under any circumstances by any party exceed $500,000 in the aggregate.

Expenses; Termination Fee. (a) Except as provided in Section 8.3(b) and 8.3 (c) of this Agreement, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expenses. (b) If: (i) (x) Parent or Purchaser terminates this Agreement pursuant to Section 8.1(c), 8.1(i) or 8.1(k), or the Company terminates this Agreement pursuant to Section 8.1(d), in either case, in circumstances when, prior to such termination any third party shall have acquired beneficial ownership of 20% or more of the outstanding shares of Company Common Stock (or any person or group with a Schedule 13D or 13G on file with the SEC (including the shareholders party to the Tender and Option Agreement except as expressly permitted in that agreement) shall have acquired beneficial ownership of additional shares of any class or series of capital stock of the Company (including Company Common Stock), through the acquisition of stock, the formation of a group or otherwise, which together with the shares of capital stock of the Company previously beneficially owned by such person or group, constitutes 20% or more of any such class or series, or shall have been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of additional shares of any class or series of capital stock of the Company (including the Company Common Stock) which together with the shares of capital stock of the Company previously beneficially owned by such person or group, constitutes 20% or more of any such class or series (it being understood that the execution of the Tender and Option Agreement by the Company shareholders that are parties thereto and the performance of their obligations thereunder shall not, in itself, be deemed to constitute such an acquisition of beneficial ownership triggering this provision)) or shall have made or consummated or announced an intention to make or consummate an Acquisition Proposal (or with respect to any proposal that may be existing on the date hereof, not withdrawn such Acquisition Proposal) or (y) Parent or Purchaser terminates this Agreement pursuant to Section 8.1(g), and, in any such case described in clauses (x) or (y) in this Section 8.3(b)(i), within 12 months after such termination the Company or any of its subsidiaries enters into or publicly announces an intention to enter into a definitive agreement with respect to an Acquisition Proposal, or consummates or publicly announces an intention to consummate an Acquisition Proposal; (ii) Parent or Purchaser terminates this Agreement pursuant to (x) clauses (i) or (ii) of Section 8.1(e) as a result of a willful and material breach of this Agreement by the Company or any material breach of Section 6.1 (whether or not willful), (y) clauses (iii) or (iv) of Section 8.1(e) or (z) Section 8.1(h); (iii) the Company terminates this Agreement pursuant to Section 8.1(f) in circumstances when Parent or Purchaser shall also have the right to terminate this Agreement pursuant to the circumstances described in Section 8.3(b)(i) or 8.3(b)(ii); or (iv) the Company terminates this Agreement pursuant to Section 8.1(j) then, in each case, the Company shall pay to Parent, within two business days following the execution and delivery of such agreement or such occurrence, as the case may be, or prior to or simultaneously with such termination by the Company as contemplated by 8.3(b)(i), (b)(iii) or (b)(iv), a fee, in cash, of $1.1 million (a “"Termination Fee”"); provided, that the Company in no event shall be obligated to pay more than one such Termination Fee with respect to all such agreements and occurrences and such termination. Any payment required to be made pursuant to this subsection (b) shall be made to Parent by wire transfer of immediately available funds to an account designated by Parent. The provisions of this Section 8.3 shall not derogate from any other rights or remedies which Parent or Purchaser may possess under this Agreement (including as provided in Section 9.3) or under applicable law, and the payment of the Termination Fee shall not be deemed to constitute liquidated damages. (c) Subject to and without limiting the rights set forth in Section 9.3, if a party breaches this Agreement and such breach is not a material and willful breach by the breaching party or a material breach by the Company of Section 6.1 of this Agreement whether or not such breach is willful, the breaching party shall not be liable in any amount in excess of the non-breaching party’s 's reasonable costs and expenses incurred in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of counsel, accountants, investment bankers, printers, experts and consultants to the non-breaching party and its affiliates (collectively, the “"Expenses”"), except to the extent that a Termination Fee is payable pursuant to Section 8.3(b) (which shall be payable in addition to any amount owing under this Section 8.3(c)); provided, however, that in no event shall Expenses payable pursuant to this Section 8.3(c) under any circumstances by any party exceed $500,000 in the aggregate.

Expenses; Termination Fee. (a) Except as provided in Section 8.3(b), (c) and 8.3 (cd) of this Agreement, all fees and expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred such fees and expensesexpenses (it being understood that the filing fees under the HSR Act and under the GWB Act shall be borne by Purchaser). (b) If: (i) (x) Parent or Purchaser terminates this Agreement pursuant to Section 8.1(c), 8.1(i) or 8.1(k), or the Company terminates this Agreement pursuant to Section 8.1(d8.1(d)(i), in either case, in circumstances when, prior to such termination any third party shall have acquired beneficial ownership of 20% or more of the outstanding shares of Company Common Stock or Company Preferred Stock (or any person or group with a Schedule 13D or 13G on file with the SEC (including the shareholders stockholders party to the Tender and Option Agreement except as expressly permitted in that agreement) shall have acquired beneficial ownership of additional shares of any class or series of capital stock of the Company (including Company Common Stock and Company Preferred Stock), through the acquisition of stock, the formation of a group or otherwise, which together with the shares of capital stock of the Company previously beneficially owned by such person or group, constitutes 20% or more of any such class or series, or shall have been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of additional shares of any class or series of capital stock of the Company (including the Company Common Stock) which together with the shares of capital stock of the Company previously beneficially owned by such person or group, constitutes 20constituting 10% or more of any such class or series (it being understood that the execution of the Tender and Option Agreement by the Company shareholders stockholders that are parties thereto and the performance of their obligations thereunder shall not, in itself, be deemed to constitute such an acquisition of beneficial ownership triggering this provision)) or shall have made or consummated or announced an intention to make or consummate an Acquisition Proposal (or with respect to any proposal that may be existing on the date hereof, not withdrawn such Acquisition Proposal) or (y) Parent or Purchaser terminates this Agreement pursuant to Section 8.1(g), and, in any such case described in clauses (x) or (y) in this Section 8.3(b)(i), within 12 months after such termination the Company or any of its subsidiaries enters into or publicly announces an intention to enter into a definitive agreement with respect to an Acquisition Proposal, or consummates or publicly announces an intention to consummate an Acquisition Proposal; (ii) Parent or Purchaser terminates this Agreement pursuant to (x) clauses (i) or (ii) of Section 8.1(e) as a result of a willful and material breach of this Agreement by the Company or any material breach of Section 6.1 (whether or not willful), (y) clauses (iii) or (iv) of Section 8.1(e) or (z) Section 8.1(h); (iii) the Company terminates this Agreement pursuant to Section 8.1(d)(ii); or (iv) the Company terminates this Agreement pursuant to Section 8.1(f) in circumstances when Parent or Purchaser shall also have the right to terminate this Agreement pursuant to the circumstances described in Section 8.3(b)(i) or 8.3(b)(ii); or (iv) the Company terminates this Agreement pursuant to Section 8.1(j) then, in each case, the Company shall pay to Parent, within two business days following the execution and delivery of such agreement or such occurrence, as the case may be, or prior to or simultaneously with such termination by the Company as contemplated by 8.3(b)(i), (b)(iiiiii) or (b)(iviv), a fee, in cash, of $1.1 5.5 million (a “"Termination Fee”"); provided, that the Company in no event shall be obligated to pay more than one such Termination Fee with respect to all such agreements and occurrences and such termination. Any payment required to be made pursuant to this subsection (b) shall be made to Parent by wire transfer of immediately available funds to an account designated by Parent. The provisions of this Section 8.3 shall not derogate from any other rights or remedies which Parent or Purchaser may possess under this Agreement (including as provided in Section 9.3) or under applicable law, and the payment of the Termination Fee shall not be deemed to constitute liquidated damages. (c) Subject to and without limiting the rights set forth in Section 9.3, if a party breaches If this Agreement is terminated as a result of a breach of this Agreement by any party hereto and such breach is not a willful and material and willful breach by the breaching party or a material breach by the Company of Section 6.1 of this Agreement whether or not 6.1, such breach is willful, the breaching party shall not be liable in any amount in excess of the non-breaching party’s reasonable costs and expenses incurred in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of counsel, accountants, investment bankers, printers, experts and consultants have no liability to the non-breaching party and its affiliates (collectively, or parties) under this Agreement except that: (i) no such breach shall relieve the “Expenses”), except obligation of the Company to pay the extent that a Termination Fee if it is otherwise payable pursuant to Section 8.3(b); (ii) no such breach shall affect the rights provided to Parent or Purchaser pursuant to Section 9.3 to the extent available; and (which iii) the breaching party, irrespective of whether the breach is willful, shall be payable in addition responsible for the Expenses (as hereinafter defined) of the non-breaching party (or parties), except with respect to a Specified Breach (as hereinafter defined) as to which there shall be no liability. The parties acknowledge and agree that no such limitation of liability or any amount owing under this other limitation of liability shall apply to breaches which are willful and material or a material breach by the Company of Section 8.3(c)); provided, however, that in no event shall Expenses payable pursuant to this Section 8.3(c) under any circumstances by any party exceed $500,000 in the aggregate6. 1. For purposes hereof: