Common use of Expenses; Termination Fees Clause in Contracts

Expenses; Termination Fees. (a) Except as set forth in this Section 7.3, all fees and expenses incurred in connection with this Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that if this Agreement is terminated by: (i) Parent or the Company pursuant to Section 7.1(c); or (ii) either party pursuant to Section 7.1(d) and at the time of such termination all of the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of this Section 7.3(a), the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented out-of-pocket expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements therefor.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.38.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that (i) Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (A) the filing, printing and mailing of the Form S-4 Registration Statement and the Prospectus/Proxy Statement and any amendments or supplements thereto and (B) the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation; and (ii) if this Agreement is terminated by: (i) by Parent or the Company pursuant to Section 7.1(c); 8.1(d) or (ii) either party by Parent pursuant to Section 7.1(d8.1(e) and or if Section 4.3(a)(B) or Section 5.2(c) so requires, then the Company shall make a nonrefundable cash payment to Parent (in addition to any fee that may be payable pursuant to Section 8.3(b) or 8.3(c)), at the time specified in the next sentence or in Section 4.3(a)(B) or Section 5.2(c) as applicable, in an amount equal to the aggregate amount of such all fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and the Stock Option Agreement and otherwise in connection with the Merger in an aggregate amount not to exceed $2,000,000. In the case of termination all of this Agreement by the Company pursuant to Section 8.1(d), the nonrefundable payment referred to in clause "(ii)" of the conditions set forth in proviso to the first sentence of this Section 6.1 (other than Section 6.1(a)8.3(a) shall be made by the Company prior to such termination; and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each termination of clauses “(ithis Agreement by Parent pursuant to Section 8.1(d) or 8.1(e)” and “, the nonrefundable payment referred to clause "(ii)” " of the proviso to the first sentence of this Section 7.3(a), 8.3(a) shall be made by the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented out-of-pocket expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements thereforbusiness days after such termination.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.39.03, all fees and expenses incurred in connection with this Merger Agreement and the transactions contemplated by this Merger Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; providedPROVIDED, howeverHOWEVER, that if this Agreement is terminated bythat: (i) Parent or Veeco and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (A) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement and any amendments or supplements thereto and (B) the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation; (ii) if this Merger Agreement is terminated by Veeco pursuant to Section 7.1(c9.01(g); or (ii) either party pursuant , then the Company shall make a nonrefundable cash payment to Section 7.1(d) and Veeco, at the time of such termination all of specified in the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, thennext sentence, in an amount equal to the case aggregate amount of each of clauses “(i)” all fees and “(ii)” of this Section 7.3(a)reasonable, the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented documented, out-of-pocket expenses and fees (including with respect to fees, all attorneys' fees, accountants' fees, financial advisory fees and expenses filing fees) that have been paid or that may become payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide by or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses on behalf of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into Veeco in connection with the Contemplated Transactions, preparation and all printing negotiation of this Merger Agreement and advertising expenses) actually incurred or accrued by any of them, or on their behalf, otherwise in connection with the Contemplated TransactionsMerger; and (iii) if this Merger Agreement is terminated by the Company pursuant to Section 9.01(h), then Veeco shall make a nonrefundable cash payment to the Company, at the time specified in the last sentence of this Section 9.03(a), in an amount equal to the aggregate amount of all fees and actually incurred reasonable, documented, out-of-pocket expenses (including with respect to fees, all attorneys' fees, accountants fees, financial advisory fees and filing fees) that have been paid or accrued that may become payable by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub on behalf of the Company in connection with the negotiation, preparation, execution preparation and performance negotiation of this AgreementMerger Agreement and otherwise in connection with the Merger. In the case of termination of this Merger Agreement by Veeco pursuant to Section 9.01(g), and the structuring nonrefundable payment referred to in clause "(ii)" of the Contemplated Transactions (all proviso to the foregoing being first sentence of this Section 9.03(a) shall be made by the Company within two business days after such termination. In the case of termination of this Merger Agreement by the Company pursuant to Section 9.01(h), the nonrefundable payment referred to herein collectively as in clause "(iii)" of the “Expenses”); provided, however, that proviso to the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses first sentence of this Section 9.03(a) shall be paid by wire transfer of immediately available funds promptly (and in any event Veeco within two Business Days) following submission of statements thereforbusiness days afer such termination.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.3otherwise provided herein, all fees and expenses incurred in connection with by a party pursuant to this Agreement shall be paid borne by the party incurring such fees and expenses, whether or not the Merger is consummated; provided, however, that however if (i) this Agreement is terminated by: (iby Parent pursuant to Section 9.1(d) Parent or Section 9.1(e) or by the Company pursuant to Section 7.1(c); or 9.1(d) and (ii) either party solely in connection with termination of this Agreement pursuant to Section 7.1(d9.1(d), at or prior to the Company General Meeting an Acquisition Proposal (which for this purpose only, (x) and at the time of such termination all of the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses reference to “(i)85%” and “15%” appearing in the definition of an “Acquisition Transaction,” shall be “50%” and (ii)” y) a tender offer or exchange offer relating to 50% or more of this Section 7.3(a)the outstanding Company Shares shall be deemed an Acquisition Proposal) shall have been disclosed, announced, commenced, submitted or made, then the Company shall reimburse each of make a nonrefundable cash payment to Parent, within ten Business Days after such termination, to compensate Parent and Acquisition Sub and their affiliates for all documented out-of-out of pocket expenses and fees in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions Merger or structuring the Contemplated Transactions Merger and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Merger Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) in the sum which is the higher of (i) US$3,000,000, plus VAT, if applicable, or (ii) such amount actually incurred or accrued by any of them, or on their behalfbehalf of Parent, up to US$4,000,000, plus VAT, if applicable. It being understood and agreed that any fees and expenses associated with the printing, filing and mailing of the Proxy Statement and any amendments or supplements thereto and the solicitation of the Required Company Shareholder Vote shall be borne by the Company. Each of Parent and the Company shall pay 50% of all of the administrative filing fees paid in connection with the Contemplated Transactions, and actually incurred filing of any notice or accrued by banks, investment banking firms, other financial institutions and document under any applicable Israeli or other persons and assumed by Parent non-Israeli antitrust law or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred regulation or to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements thereforother Governmental Body.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.38.3 and/or the Binding LOI Amendment, all fees and expenses incurred in connection with this Agreement shall and the Contemplated Transactions will be paid by the party Party incurring such expenses, whether or not the Merger Acquisition is consummated; provided. Notwithstanding the foregoing, however(A) BLBX and Evtec shall share equally all fees and expenses, that if this Agreement is terminated by: other than attorneys’ and accountants’ fees and expenses, incurred (i) Parent or in relation to the Company pursuant filings by the Parties under any filing requirement under any foreign antitrust Legal Requirement applicable to Section 7.1(c); or this Agreement and the Contemplated Transactions, (ii) either party pursuant by engagement of the Exchange Agent and (iii) in relation to Section 7.1(dthe printing (e.g., paid to a financial printer) and at filing with the time of such termination all SEC of the conditions set forth in Section 6.1 Registration Statement (other than Section 6.1(a)including any financial statements and exhibits) and Section 6.3 any amendments or supplements thereto; and (other than Section 6.3(c)B) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of this Section 7.3(a), the Company Evtec shall reimburse each of Parent and Acquisition Sub and their affiliates be solely responsible for all documented listing fees payable to Nasdaq in connection with the listing of the shares of BLBX Common Stock to be issued in connection with the Acquisition and reasonable out-of-pocket expenses and fees (including of BLBX incurred in connection therewith. Notwithstanding the above, Evtec shall be responsible for up to $175,000 of BLBX legal fees and expenses payable to all banksas set forth in the Binding LOI Amendment, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide regardless of whether or providing any financing for not this Agreement is terminated. Each of the Parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the Contemplated Transactions or structuring Transactions, without which, the Contemplated Transactions Parties would not enter into this Agreement. It is understood and agreed that all fees and expenses of counsel, accountants, experts and consultants incurred or to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into be incurred by BLBX in connection with the Contemplated TransactionsTransactions and preparing, negotiating and all printing entering into this Agreement and advertising expenses) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of its obligations under this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses Agreement shall be paid by wire transfer of immediately available funds promptly (and BLBX in any event within two Business Days) following submission of statements thereforcash at or prior to the Closing.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.3otherwise provided herein, all fees and expenses incurred in connection with by a party pursuant to this Agreement shall be paid borne by the party incurring such fees and expenses, whether or not the Merger is consummated; provided, however, that however if (i) this Agreement is terminated by: (iby Parent pursuant to Section ‎9.1‎(d) Parent or Section ‎9.1(e) or by the Company pursuant to Section 7.1(c); or ‎9.1‎(d) and (ii) either party solely in connection with termination of this Agreement pursuant to Section 7.1(d9.1(d), at or prior to the Company General Meeting an Acquisition Proposal (which for this purpose only, (x) and at the time of such termination all of the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses reference to “(i)85%” and “15%” appearing in the definition of an “Acquisition Transaction,” shall be “50%” and (ii)” y) a tender offer or exchange offer relating to 50% or more of this Section 7.3(a)the outstanding Company Shares shall be deemed an Acquisition Proposal) shall have been disclosed, announced, commenced, submitted or made, then the Company shall reimburse each of make a nonrefundable cash payment to Parent, within ten Business Days after such termination, to compensate Parent and Acquisition Sub and their affiliates for all documented out-of-out of pocket expenses and fees in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions Merger or structuring the Contemplated Transactions Merger and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Merger Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) in the sum which is the higher of (i) US$3,000,000, plus VAT, if applicable, or (ii) such amount actually incurred or accrued by any of them, or on their behalfbehalf of Parent, up to US$4,000,000, plus VAT, if applicable. It being understood and agreed that any fees and expenses associated with the printing, filing and mailing of the Proxy Statement and any amendments or supplements thereto and the solicitation of the Required Company Shareholder Vote shall be borne by the Company. Each of Parent and the Company shall pay 50% of all of the administrative filing fees paid in connection with the Contemplated Transactions, and actually incurred filing of any notice or accrued by banks, investment banking firms, other financial institutions and document under any applicable Israeli or other persons and assumed by Parent non-Israeli antitrust law or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred regulation or to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements thereforother Governmental Body.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.310.3, all fees costs and expenses incurred in connection with this Agreement and the Contemplated Transactions (including, without limitation, the fees, costs and expenses of its advisers, accountants and legal counsel) shall be paid by the party Party incurring such expenses, whether or not the Merger is Contemplated Transactions are consummated; providedprovided however that the Company shall make a nonrefundable cash payment to the Purchaser, howeverin an amount equal to the aggregate amount of all fees and expenses that have been paid or that may become payable by or on behalf of the Purchaser in connection with the preparation and negotiation of this Agreement, that the Contemplated Transactions, and the Transaction Agreements (the “Expense Reimbursement”) if this Agreement is terminated by: (iby the Purchaser in accordance with either Section 10.1(a) Parent or by either the Company or the Company Purchaser pursuant to Section 7.1(c); or (ii10.1(b)(iii) either party pursuant to Section 7.1(d) and at the time of such termination all of the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of hereof. Any Expense Reimbursement required under this Section 7.3(a), the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented out-of-pocket expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses10.3(a) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid by the Company by wire transfer of immediately available funds promptly to such account as the Purchaser may designate within ten (10) Business Days after such termination by the Purchaser. Notwithstanding the foregoing, in no event shall the Company be obligated to make any Expense Reimbursements in excess of $500,000 in the aggregate under this Section 10.3(a); and provided further that, in no event shall the Company be required to make any event within two Business DaysExpense Reimbursements under this Section 10.3(a) following submission any termination of statements thereforthis Agreement pursuant to Section 10.1(b)(iii) hereof if on or before the date of the Company Stockholders Meeting Parent shall not have received the Chinese Government Approvals or any such Chinese Government Approvals shall have been denied.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.38.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; providedPROVIDED, howeverHOWEVER, that that: (i) Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (A) the filing, printing and mailing of the Form S-4 Registration Statement and the Joint Proxy Statement and any amendments or supplements thereto and (B) the filing of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation; (ii) if this Agreement is terminated by: (i) by Parent or the Company pursuant to Section 7.1(c8.1(d); or , then, at the time specified in the next sentence, the Company shall make a nonrefundable cash payment to Parent (ii) either party in addition to any other amount that may be payable pursuant to Section 7.1(d8.3(b) or otherwise) in an amount equal to the aggregate amount of all fees and expenses (including all reasonable attorneys' fees, accountants' fees, financial advisory fees and filing fees up to a maximum of $2,000,000) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and the Stock Option Agreement and otherwise in connection with the Merger; and (iii) if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e), then, at the time specified in the last sentence of such termination this Section 8.3(a), Parent shall make a nonrefundable cash payment to the Company in an amount equal to the aggregate amount of all fees and expenses (including all reasonable attorneys' fees, accountants fees, financial advisory fees and filing fees up to a maximum of $2,000,000) that have been paid or that may become payable by or on behalf of the conditions set forth Company in connection with the preparation and negotiation of this Agreement and the Stock Option Agreement and otherwise in connection with the Merger. In the case of termination of this Agreement by the Company pursuant to Section 6.1 8.1(d), the nonrefundable payment referred to in clause "(other than ii)" of the proviso to the first sentence of this Section 6.1(a)8.3(a) shall be made by the Company prior to such termination; and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each termination of clauses “(ithis Agreement by Parent pursuant to Section 8.1(d)” and “, the nonrefundable payment referred to in clause "(ii)” " of the proviso to the first sentence of this Section 7.3(a8.3(a) shall be made by the Company within two business days after such termination. In the case of termination of this Agreement by Parent pursuant to Section 8.1(e), the Company nonrefundable payment referred to in clause "(iii)" of the proviso to the first sentence of this Section 8.3(a) shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented out-of-pocket expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed be made by Parent or Acquisition Sub prior to such termination; and in connection with the negotiation, preparation, execution and performance case of termination of this AgreementAgreement by the Company pursuant to Section 8.1(e), and the structuring nonrefundable payment referred to in clause "(iii)" of the Contemplated Transactions (all proviso to the foregoing being referred to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses first sentence of this Section 8.3(a) shall be paid by wire transfer of immediately available funds promptly (and in any event Parent within two Business Days) following submission of statements thereforbusiness days after such termination.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.38.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger Arrangement is consummated; provided, however, that that: (i) Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (A) the filing, printing and mailing of the Management Proxy Circular and any amendments or supplements thereto and (B) the filing by the parties hereto of the notification and report forms relating to the Arrangement under the HSR Act (if applicable) and the filing of any notice or other document under the Investment Canada Act, the Competition Act (Canada) and any other applicable foreign antitrust law or regulation (if applicable); (ii) if (A) this Agreement is terminated by: (i) by Parent or the Company pursuant to Section 7.1(c8.1(b); , (B) at or prior to the time of the termination of this Agreement, any Person shall have publicly disclosed, announced, commenced, submitted or made an Acquisition Proposal or an Acquisition Proposal shall have otherwise become generally known to the shareholders of the Company, (iiC) either party the failure of the Arrangement to be consummated on or before the date referred to in Section 8.1(b) is not directly attributable to a material breach of this Agreement by Parent or to any investigation or review of the Arrangement by any Governmental Body, and (D) prior to the date of termination of this Agreement, the Arrangement shall not have been duly approved by the Required Company Securityholder Vote then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 7.1(d) and at the time of such termination all of the conditions set forth in Section 6.1 (other than Section 6.1(a8.3(c)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of this Section 7.3(a), the Company shall reimburse each make a nonrefundable cash payment to Parent, at the time specified in Section 8.3(b), in an amount equal to $1,500,000 as payment in full of Parent's fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of 52. <PAGE> Parent in connection with the preparation and negotiation of this Agreement and the Stock Option Agreement and otherwise in connection with the Arrangement; and (iii) if this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) or by Parent pursuant to Section 8.1(e), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(d) or Section 8.3(e)), the Company shall make a nonrefundable cash payment to Parent, at the time specified in Section 8.3(b), in an amount equal to $1,500,000 as payment in full of Parent's fees and expenses (including all attorneys' fees, accountants' fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and the Stock Option Agreement and otherwise in connection with the Arrangement. (b) In the case of termination of this Agreement by the Company pursuant to Section 8.1(b) or Section 8.1(d), any nonrefundable payment required to be made pursuant to clause "(ii)" or clause "(iii)" of the proviso to Section 8.3(a) shall be made prior to the time of such termination; and in the case of termination of this Agreement by Parent pursuant to Section 8.1(b), Section 8.1(d) or Section 8.1(e), any nonrefundable payment required to be made pursuant to clause "(ii)" or clause "(iii)" of the proviso to Section 8.3(a) shall be made by the Company within two business days after such termination. (c) If (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b), (B) at or prior to the time of the termination of this Agreement, any Person shall have publicly disclosed, announced, commenced, submitted or made an Acquisition Sub Proposal or an Acquisition Proposal shall have otherwise become generally known to the shareholders of the Company, (C) the failure of the Arrangement to be consummated on or before the date referred to in Section 8.1(b) is not directly attributable to a material breach of this Agreement by Parent or to any investigation or review of the Arrangement by any Governmental Body, and their affiliates (D) prior to the date of termination of this Agreement, the Arrangement shall not have been duly approved by the Required Company Securityholder Vote, then the Company shall pay to Parent, in cash at the time specified in the next sentence, a nonrefundable fee in the amount of $10,050,000 (the "Initial Termination Fee"). In the case of termination of this Agreement by the Company pursuant to Section 8.1(b), the Initial Termination Fee, if it shall have become payable, shall be paid by the Company prior to such termination, and in the case of termination of this Agreement by Parent pursuant to Section 8.1(b), the Initial Termination Fee, if it shall have become payable, shall be paid by the Company within two business days after such termination. If (A) the Initial Termination Fee has been paid or become payable and (B) within 360 days after the date of termination of this Agreement, an Acquisition Transaction (other than with Parent or one of Parent's Affiliates) is consummated or the Company enters into a definitive agreement with respect to an Acquisition Transaction (other than with Parent or one of Parent's Affiliates), the Company shall pay to Parent in cash an additional nonrefundable fee of $20,100,000, such payment to be made at or prior to the consummation of such Acquisition Transaction or the entering into of such definitive agreement, whichever is earlier. (d) (i) If (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), (B) at or prior to the time of the termination of this 53. <PAGE> Agreement, any Person shall have publicly disclosed, announced, commenced, submitted or made an Acquisition Proposal or an Acquisition Proposal shall have otherwise become generally known to the shareholders of the Company, and (C) such Acquisition Proposal is not publicly and definitively withdrawn on or before the day prior to the date of the Company Securityholders' Meeting, then the Company shall pay to Parent, in cash at the time specified in the next sentence, a nonrefundable fee in the amount of the Initial Termination Fee. In the case of termination of this Agreement by the Company pursuant to Section 8.1(d), the Initial Termination Fee, if it shall have become payable, shall be paid by the Company prior to such termination, and in the case of termination of this Agreement by Parent pursuant to Section 8.1(d), the Initial Termination Fee, if it shall become payable, shall be paid by the Company within two business days after such termination. If (A) the Initial Termination Fee has been paid or become payable and (B) within 360 days after the date of termination of this Agreement, an Acquisition Transaction (other than with Parent or one of Parent's Affiliates) is consummated or the Company enters into a definitive agreement with respect to an Acquisition Transaction (other than with Parent or one of Parent's Affiliates), the Company shall pay to Parent in cash an additional nonrefundable fee of $20,100,000, such payment to be made at or prior to the consummation of such Acquisition Transaction or the entering into of such definitive agreement, whichever is earlier. (ii) Notwithstanding anything to the contrary contained in Section 8.3(d)(i), if (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), (B) at or prior to the time of the termination of this Agreement, any Person shall have publicly disclosed, announced, commenced, submitted or made an Acquisition Proposal or an Acquisition Proposal shall have otherwise become generally known to the shareholders of the Company, (C) such Acquisition Proposal is publicly and definitively withdrawn on or before the day prior to the date of the Company Securityholders' Meeting, and (D) within 360 days after the date of termination of this Agreement pursuant to Section 8.1(d), an Acquisition Transaction (other than with Parent or one of Parent's Affiliates) is consummated or the Company enters into a definitive agreement with respect to an Acquisition Transaction (other than with Parent or one of Parent's Affiliates), the Company shall pay to Parent in cash a nonrefundable fee of $30,150,000, such payment to be made at or prior to the consummation of such Acquisition Transaction or the entering into of such definitive agreement, whichever is earlier. (e) If this Agreement is terminated by Parent pursuant to Section 8.1(e), then the Company shall pay to Parent, in cash at the time specified in the next sentence (and in addition to the amounts payable pursuant to Section 8.3(a)), a nonrefundable fee in the amount equal to $30,150,000. The fee referred to in the preceding sentence shall be paid by the Company within two business days after such termination. Notwithstanding anything to the contrary contained in this Section 8.3(e), if: (i) at or prior to the time of the termination of this Agreement by Parent pursuant to Section 8.1(e), no Person shall have publicly disclosed, announced, commenced, submitted or made an Acquisition Proposal and an Acquisition Proposal shall not have otherwise become generally known to the shareholders of the Company; (ii) a Parent Event shall have occurred; (iii) the Company provides Parent with at least three business days prior notice of any meeting of the Company's board of directors at which such board of directors will consider whether, as a direct result of and a direct response to the occurrence of such Parent Event, the Company Board Recommendation must be withdrawn or modified in a manner adverse to Parent; (iv) the Company's board of directors determines in good faith, after having considered the written advice of the Company's outside legal counsel, that the withdrawal or modification of the Company Board Recommendation is required in order for the Company's board of directors to comply with its fiduciary obligations to the Company's shareholders under applicable law; (v) the Company Board Recommendation is not withdrawn or 54. <PAGE> modified in a manner adverse to Parent at any time within five business days after Parent receives written notice from the Company confirming that the Company's board of directors has determined that a withdrawal or modification of the Company Board Recommendation is required in order for the Company's board of directors to comply with its fiduciary obligations to the Company's shareholders under applicable law; and (vi) Parent shall have terminated this Agreement pursuant to Section 8.1(e), then the Company shall pay to Parent, in cash, at the time specified in the next sentence, a nonrefundable fee in the amount of $3,500,000 (the "Initial Triggering Event Fee"). The Initial Triggering Event Fee, if it shall have become payable, shall be paid by the Company within two business days after such termination. If (A) the Initial Triggering Event Fee has been paid or become payable and (B) within 360 days after the date of termination of this Agreement, an Acquisition Transaction (other than with Parent or one of Parent's Affiliates) is consummated or the Company enters into a definitive agreement with respect to an Acquisition Transaction (other than with Parent or one of Parent's Affiliates), the Company shall pay to Parent in cash an additional nonrefundable fee of $26,650,000, such payment to be made at or prior to the consummation of such Acquisition Transaction or the entering into of such definitive agreement, whichever is earlier. (f) The parties hereby acknowledge and agree that for the purposes of Section 8.3(a)(ii) and Sections 8.3(c), (d) and (e), the specific references to "Acquisition Proposal" and "Acquisition Transaction" shall not include an acquisition of additional Common Shares by Galileo Equity Management Inc. (a "Galileo Acquisition"); provided that (i) Galileo Equity Management Inc. holds the Common Shares for passive investment purposes only and (ii) none of the Acquired Corporations and no Representative of any of the Acquired Corporations shall have solicited, initiated, encouraged, induced or facilitated the making, submission or announcement of a Galileo Acquisition. (g) Notwithstanding anything to the contrary contained in this Agreement, if the Company fails to pay when due any amount payable under this Section 8.3, then (i) the Company shall reimburse Parent for all documented out-of-pocket costs and expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses disbursements of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into ) incurred in connection with the Contemplated Transactionscollection of such overdue amount and the enforcement by Parent of its rights under this Section 8.3, and all printing and advertising expenses(ii) actually incurred or accrued by any of them, or the Company shall pay to Parent interest on their behalf, in connection with such overdue amount (for the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring period commencing as of the Contemplated Transactions (all the foregoing being referred date such overdue amount was originally required to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to the "prime rate" (as announced by wire transfer Bank of immediately available funds promptly (and America or any successor thereto) in any event within two Business Days) following submission of statements therefor.effect on the date such overdue amount was originally required to be paid. 9. Miscellaneous Provisions 9.1

Expenses; Termination Fees. (a) Except as set forth in this Section 7.38.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated; provided, however, that if Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with (i) the filing, printing and mailing of the Form S-4 Registration Statement and the Prospectus/Proxy Statement and any amendments or supplements thereto and (ii) the filing by the parties hereto of the premerger notification and report forms relating to the Merger under the HSR Act and the filing of any notice or other document under any applicable foreign antitrust law or regulation. If this Agreement is terminated by: by Parent pursuant to Section 8.1(e), then the Company shall pay to Parent, in cash, within seven business days after such termination, a nonrefundable fee in the amount of $54,000,000. If (i) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(c8.1(d); or , (ii) either party pursuant at or prior to Section 7.1(d) and at the time of such termination all an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, and (iii) within 270 days after such termination, an Acquisition Transaction is consummated or any of the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of this Section 7.3(a)Acquired Corporations enters into a Contract contemplating an Acquisition Transaction, the Company shall reimburse each pay to Parent, in cash, at or prior to the consummation of Parent and such Acquisition Sub and their affiliates Transaction or the entering into of such Contract, whichever is earlier, a nonrefundable fee in the amount of $54,000,000 (it being understood that, solely for all documented out-of-pocket expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses purposes of counsel, accountants, experts and consultants to Parent and Acquisition Subthis Section 8.3(c), all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring of the Contemplated Transactions (all the foregoing being referred references to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 "15%" in the aggregate. The Expenses definition of "Acquisition Transaction" shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements therefordeemed to refer instead to "35%").

Expenses; Termination Fees. (a) Except as set forth in this Section 7.39.3, all fees and expenses incurred in connection with this Agreement the Transaction Expenses shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that if . (b) If this Agreement is terminated by: (i) Parent or by the Company pursuant to Section 7.1(c9.1(f) or Section 9.1(h); or , then Parent shall reimburse the Company for all reasonable out of pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions, up to a maximum of $500,000 (iithe “Company Termination Fee”), in each case, by wire transfer of same day funds within three (3) either party Business Days following the date on which the Company submits to Parent true and correct copies of reasonable documentation supporting such expenses. (c) If this Agreement is terminated by Parent pursuant to Section 7.1(d9.1(g) and at the time of such termination all of the conditions set forth in or Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of this Section 7.3(a9.1(i), then the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented out-of-reasonable out of pocket expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses of counsel, accountants, experts and consultants to incurred by Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into in connection with this Agreement and the Contemplated Transactions, up to a maximum of $500,000 (the “Parent Termination Fee”), in each case, by wire transfer of same day funds within three (3) Business Days following the date on which Parent submits to the Company true and all printing correct copies of reasonable documentation supporting such expenses. (d) The Parties agree that, (i) subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and advertising expensesexclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the Company Termination Fee on more than one occasion and (ii) actually incurred following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or accrued arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of themthe Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or on their behalfin equity or otherwise, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance arising out of this AgreementAgreement or the termination thereof, and any breach by such Party giving rise to such termination or the structuring of the Contemplated Transactions (all the foregoing being referred to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements therefor.failure

Expenses; Termination Fees. (a) Except as set forth in this Section 7.3, 9.3 and Section 5.11 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is consummated; provided, however, that if Apricus and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC. It is understood and agreed that all fees and expenses incurred or to be incurred by the Company or Apricus in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company or Apricus, as applicable, in cash at or prior to the Closing (and shall be Company Transaction Expenses or Apricus Transaction Expenses, as applicable). (b) If (i) (A) this Agreement is terminated by: (i) Parent by Apricus or the Company pursuant to Section 7.1(c9.1(e); , or (B) this Agreement is terminated by the Company pursuant to Section 9.1(h), (ii) at any time after the date of this Agreement and prior to the Apricus Stockholders’ Meeting an Acquisition Proposal with respect to Apricus shall have been publicly announced, disclosed or otherwise communicated to the Apricus Board and (iii) within 12 months after the date of such termination, Apricus enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Apricus shall pay to the Company, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $500,000 (the “Company Termination Fee”) by wire transfer of same-day funds or by issuing to the Company shares of Apricus Common Stock or a combination thereof, as determined by Apricus in its sole discretion, with any such shares of Apricus Common Stock valued at the volume weighted average closing trading price of a share of Apricus Common Stock on Nasdaq for the five trading days ending the trading day immediately prior to the date upon which Apricus enters into a definitive agreement and/or consummates a Subsequent Transaction (subject to further adjustment as appropriate to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to the Apricus Common Stock), less any amount previously paid to the Company pursuant to 79 Exhibit 2.1 Section 9.3(f), plus any amount payable to the Company pursuant to Section 9.3(h) by wire transfer of same-day funds. (c) If this Agreement is terminated by the Company pursuant to Section 9.1(f) or by Apricus pursuant to Section 9.1(k), then Apricus shall pay to the Company, by wire transfer of same-day funds within ten Business Days after termination, the Company Termination Fee, in addition to any amount payable to the Company pursuant to Section 9.3(h). (d) If (i) this Agreement is terminated by Apricus pursuant to Sections 9.1(d) or 9.1(i), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board, and (iii) within 12 months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then the Company shall pay to Apricus, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $500,000 (the “Apricus Termination Fee”) by wire transfer of same-day funds or by issuing to Apricus shares of Company Common Stock or a combination thereof, as determined by the Company in its sole discretion, with any such shares of Company Common Stock valued at a price per share of $16.25 (subject to further adjustment as appropriate to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to the Company Common Stock), in addition to any amount payable to Apricus pursuant to Section 9.3(h). (e) If this Agreement is terminated by Apricus pursuant to Section 9.1(g) or by the Company pursuant to Section 9.1(j), then the Company shall pay to Apricus, within ten Business Days after termination, the Apricus Termination Fee, in addition to any amount payable to Apricus pursuant to Section 9.3(h). (f) (i) If this Agreement is terminated by the Company pursuant to Section 9.1(h) or Section 9.1(e) or (ii) either party pursuant in the event of the failure of the Company to Section 7.1(d) and consummate the transactions to be contemplated at the time Closing solely as a result of such termination all of the conditions an Apricus Material Adverse Effect as set forth in Section 6.1 8.5 (provided, that at such time all of the other than conditions precedent to Apricus’ obligation to close set forth in Section 6.1(a)) 6 and Section 6.3 (other than Section 6.3(c)) 7 have been satisfied by the Company, are capable of being satisfied as if by the termination date were the Closing Date, then, in the case of each of clauses “(i)” and “(ii)” of this Section 7.3(aCompany or have been waived by Apricus), then Apricus shall reimburse the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions (such expenses, collectively, the “Third Party Expenses”), up to a maximum of $350,000, by wire transfer of same-day funds within ten Business Days following the date on which the Company submits to Apricus true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that in no event shall Apricus be obligated to reimburse the Company for any amounts payable to financial advisors to the Company except for reasonably documented out-of-pocket expenses and fees (including fees and expenses payable otherwise reimbursable by the Company to all banks, investment banking firms, other such financial institutions and other persons and their respective agents and counsel, for arranging, committing advisors pursuant to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into in connection with the Contemplated Transactions, and all printing and advertising expenses) actually incurred or accrued by any of them, or on their behalf, in connection with the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring terms of the Contemplated Transactions Company’s engagement letter or similar arrangement with such financial advisors. 80 Exhibit 2.1 (g) (i) If this Agreement is terminated by Apricus pursuant to Section 9.1(i) or (ii) in the event of the failure of Apricus to consummate the transactions to be consummated at the Closing solely as a result of a Company Material Adverse Effect as set forth in Section 7.5 (provided, that at such time all of the foregoing other conditions precedent to the Company’s obligation to close set forth in Section 6 and Section 8 have been satisfied by Apricus, are capable of being referred satisfied by Apricus or have been waived by the Company), the Company shall reimburse Apricus for all Third Party Expenses incurred by Apricus up to herein collectively as a maximum of $350,000, by wire transfer of same-day funds within ten Business Days following the “date on which Apricus submits to the Company true and correct copies of reasonable documentation supporting such Third Party Expenses”); provided, however, that in no event shall the Expenses Company be obligated to reimburse Apricus for any amounts payable to financial advisors to Apricus except for reasonably documented out-of-pocket expenses otherwise reimbursable by Apricus to such financial advisors pursuant to the terms of Apricus’ engagement letter or similar arrangement with such financial advisors. (h) If either Party fails to pay when due any amount payable by it under this Section 9.3, then (i) such Party shall reimburse the other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other Party of its rights under this Section 9.3, and (ii) such Party shall pay to the other Party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to the other Party in full) at a rate per annum equal to the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid plus three percent. (i) The Parties agree that, subject to Section 9.2, the payment of the fees and expenses set forth in this Section 9.3 shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 9.3, it being understood that in no event shall either Apricus or the Company be required to pay the individual fees or damages payable pursuant to this Section 9.3 on more than one occasion. Subject to Section 9.2, following the payment of the fees and expenses set forth in this Section 9.3 by a Party, (i) such party shall have no further liability to the other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (ii) no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against such Party or seek to obtain any recovery, judgment or damages of any kind against such Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, affiliate, agent or other representative of such Party) in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (iii) all other Parties and their respective Affiliates shall be precluded from any other remedy against such Party and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (x) the agreements contained in this Section 9.3 are an 81 Exhibit 2.1 integral part of the Contemplated Transactions, (y) without these agreements, the Parties would not exceed $60,000,000 enter into this Agreement and (z) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Parties in the aggregatecircumstances in which such amount is payable. The Expenses shall be paid by wire transfer of immediately available funds promptly (and in any event within two Business Days) following submission of statements thereforSection 10.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.39.03, all fees and expenses incurred in connection with this Merger Agreement and the transactions contemplated by this Merger Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, provided however that (i) if this Merger Agreement is terminated by: (i) Parent or the Company by IPC pursuant to Section 7.1(c); 9.01(e) as a result of an intentional act or (ii) either party pursuant omission by the Company, then the Company shall make a nonrefundable cash payment to Section 7.1(d) and IPC, at the time of such termination all of specified in the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, thennext sentence, in an amount equal to the case aggregate amount of each of clauses “(i)” all fees and “(ii)” of this Section 7.3(a)reasonable, the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented documented, out-of-pocket expenses and fees (including with respect to fees, all attorneys' fees, accountants' fees and expenses filing fees) that have been paid or that may become payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide by or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses on behalf of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into IPC in connection with the Contemplated Transactions, preparation and all printing negotiation of this Merger Agreement and advertising expenses) actually incurred or accrued by any of them, or on their behalf, otherwise in connection with the Contemplated TransactionsMerger; and (ii) if this Merger Agreement is terminated by the Company pursuant to Section 9.01(f), then IPC shall make a nonrefundable cash payment to the Company, at the time specified in the last sentence of this Section 9.03, in an amount equal to the aggregate amount of all fees and actually incurred reasonable, documented, out-of-pocket expenses (including with respect to fees, all attorneys' fees, accountants fees, financial advisory fees and filing fees) that have been paid or accrued that may become payable by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub on behalf of the Company in connection with the negotiation, preparation, execution preparation and performance negotiation of this AgreementMerger Agreement and otherwise in connection with the Merger. In the case of termination of this Merger Agreement by IPC pursuant to Section 9.01(e), and the structuring nonrefundable payment referred to in clause "(i)" of the Contemplated Transactions (all proviso to the foregoing being first sentence of this Section 9.03 shall be made by the Company within two business days after such termination. In the case of termination of this Merger Agreement by the Company pursuant to Section 9.01(f), the nonrefundable payment referred to herein collectively as in clause "(ii)" of the “Expenses”); provided, however, that proviso to the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses first sentence of this Section 9.03 shall be paid by wire transfer of immediately available funds promptly (and in any event IPC within two Business Days) following submission of statements thereforbusiness days afer such termination.

Expenses; Termination Fees. (a) Except as set forth in this Section 7.38.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that if Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the filing, printing and mailing of the Form S-4 Registration Statement and the Prospectus/Proxy Statement and any amendments or supplements thereto. If (i) this Agreement is terminated by: (i) by Parent or the Company pursuant to Section 7.1(c); 8.1(b) or Section 8.1(d) and at or prior to the time of the termination of this Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made, or (ii) either party this Agreement is terminated by Parent pursuant to Section 7.1(d) and 8.1(e), then the Company shall pay to Parent, in cash at the time of such termination all of the conditions set forth in Section 6.1 (other than Section 6.1(a)) and Section 6.3 (other than Section 6.3(c)) are satisfied as if the termination date were the Closing Date, then, specified in the case next sentence (and in addition to the amounts payable pursuant to Section 8.3(a)), a nonrefundable fee in the amount equal to $3,600,000. The fee referred to in the preceding sentence shall be paid by the Company no later than 60 calendar days after the date of each termination of clauses “this Agreement. If the Company fails to pay when due any amount payable under this Section 8.3, then (i)” and “(ii)” of this Section 7.3(a), ) the Company shall reimburse each of Parent and Acquisition Sub and their affiliates for all documented out-of-pocket costs and expenses and fees (including fees and expenses payable to all banks, investment banking firms, other financial institutions and other persons and their respective agents and counsel, for arranging, committing to provide or providing any financing for the Contemplated Transactions or structuring the Contemplated Transactions and all fees and expenses disbursements of counsel, accountants, experts and consultants to Parent and Acquisition Sub, all fees, costs and expenses of any xxxxxx entered into ) incurred in connection with the Contemplated Transactionscollection of such overdue amount and the enforcement by Parent of its rights under this Section 8.3, and all printing and advertising expenses(ii) actually incurred or accrued by any of them, or the Company shall pay to Parent interest on their behalf, in connection with such overdue amount (for the Contemplated Transactions, and actually incurred or accrued by banks, investment banking firms, other financial institutions and other persons and assumed by Parent or Acquisition Sub in connection with the negotiation, preparation, execution and performance of this Agreement, and the structuring period commencing as of the Contemplated Transactions (all the foregoing being referred date such overdue amount was originally required to herein collectively as the “Expenses”); provided, however, that the Expenses shall not exceed $60,000,000 in the aggregate. The Expenses shall be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to the "prime rate" (as announced by wire transfer Bank of immediately available funds promptly (and America or any successor thereto) in any event within two Business Days) following submission of statements thereforeffect on the date such overdue amount was originally required to be paid.