Common use of Expenses; Termination Fees Clause in Contracts

Expenses; Termination Fees. (a) Except as set forth in this Section 8.3, 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 Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the printing and filing of the S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto. (b) If this Agreement is terminated by Parent pursuant to Section 8.1(e), then the Company shall pay to Parent (at the time specified in Section 8.3(c)), a nonrefundable fee equal to five million dollars ($5,000,000) (the "Termination Fee") in cash within three (3) days of such termination. (c) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of the date of this Agreement, Company shall pay to Parent the Termination Fee contemporaneously with the earlier of the consummation of such Acquisition Transaction or such announcement regarding a proposed Acquisition Agreement.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.39.3, 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 Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the printing and filing of the S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto.; (b) (i) If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e9.1(e), or if this Agreement is terminated by the Company pursuant to Section 9.1(f), and (ii) if prior to the date six months after the date of such termination, (A) Parent enters into any agreement involving an Acquisition Transaction, (B) a tender offer, an exchange offer, or a share exchange is commenced that would constitute an Acquisition Transaction if completed or (C) an Acquisition Transaction is otherwise consummated (each, the "Alternate Transaction") then, upon consummation of such Alternate Transaction, Parent shall pay to the Company, in cash, a nonrefundable fee in the amount of $500,000. (c) The fee referred to in Section 9.3(b) shall be paid by Parent within two (2) business days after becoming payable pursuant to Section 9.3(b). (d) If this Agreement is terminated by Parent or the Company pursuant to Section 9.1(d), then the Company shall pay to Parent within two (at the time specified in Section 8.3(c)), a nonrefundable fee equal to five million dollars ($5,000,0002) (the "Termination Fee") in cash within three (3) business days of such termination. (c) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of the date of this Agreement, Company shall pay the termination a nonrefundable fee in the amount of $500,000 to Parent the Termination Fee contemporaneously cover Parent's expenses in connection with the earlier of the consummation of such Acquisition Transaction or such announcement regarding a proposed Acquisition Agreementtransaction.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.37.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement Contemplated Transactions shall be paid by the party Party incurring such expenses, whether or not the Merger is are consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the printing and filing of the S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto. (b) If (i) this Agreement is terminated by Parent the Company pursuant to Section 8.1(e7.1(f), then (ii) prior to such termination, Parent shall have breached any of the Company shall pay to covenants of Parent (at the time specified set forth in Section 8.3(c)), a nonrefundable fee equal to five million dollars ($5,000,000) (the "Termination Fee") in cash within three (3) days of such termination. (c) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d4.5(a) and (iii) Parent enters into an agreement to consummate a Parent Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary Proposal within six (6) months of the date of this Agreementtermination, then Parent shall pay, or cause the counterparty to the Parent Acquisition Proposal to pay, to the Company shall pay within two (2) Business Days after the entry into such Parent Acquisition Proposal an amount equal to Parent the Termination Fee contemporaneously total documented expenses incurred by the Company or the Company’s stockholders and their respective Affiliates in connection with the earlier negotiation and execution of this Agreement and the consummation Contemplated Transactions, not to exceed $300,000 in the aggregate. For purposes of this Section 7.3(b): (A) the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 4.5, (B) a merger effected by Parent for the sole purpose of reincorporating Parent into another jurisdiction shall not be a Parent Acquisition Transaction or such announcement regarding Proposal and (C) any offering of securities by Parent solely for cash in a proposed capital raising transaction shall not be a Parent Acquisition AgreementProposal.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement Contemplated Transactions shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys' ’ fees, incurred in connection with with: (i) the filing, printing and filing mailing of the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto; and (ii) the filing of any notice or other document under any applicable foreign Antitrust Law. (b) (i) If this Agreement is terminated by Parent pursuant to Section 8.1(e), then the Company shall pay to Parent 8.1(g) or (at the time specified in Section 8.3(c)), a nonrefundable fee equal to five million dollars ii) if: ($5,000,000A) (the "Termination Fee") in cash within three (3) days of such termination. (c) If this Agreement is terminated by the Company or Parent pursuant to Section 8.1(d); (B) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of the date of this Agreement, Company shall pay Parent Stockholders Meeting an Acquisition Proposal with respect to Parent shall have been publicly made and not withdrawn prior to the Termination Fee contemporaneously with the earlier of the consummation of Parent Stockholders Meeting; (C) within nine (9) months following such Acquisition Transaction or such announcement regarding termination, Parent enters into a proposed Acquisition Agreement.definitive

Expenses; Termination Fees. (aA) Except as set forth in this Section 8.3, 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 Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the printing and filing of the S-4 Registration Statement and the Joint Proxy Statement/Statement/ Prospectus and any amendments or supplements thereto. (bB) If this Agreement is terminated by Parent pursuant to Section 8.1(e), then the Company shall pay to Parent (at the time specified in Section 8.3(c)), a nonrefundable fee equal to five million dollars ($5,000,000) (the "Termination FeeTERMINATION FEE") in cash within three (3) days of such termination. (cC) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of the date of this Agreement, Company shall pay to Parent the Termination Fee contemporaneously with the earlier of the consummation of such Acquisition Transaction or such announcement regarding a proposed Acquisition Agreement.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement Contemplated Transactions shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall share equally all fees and expenses, other than attorneys' ’ fees, incurred in connection with with: (i) the filing, printing and filing mailing of the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto; and (ii) the filing by the parties hereto of any notice or other document under any applicable antitrust or competition Legal Requirement. (b) If this Agreement is terminated terminated: (i) by Parent pursuant to Section 8.1(e8.1(f); or (ii) by Parent or the Company pursuant to Section 8.1(d), and in the case of clause “(ii)” of this sentence: (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal with respect to an Avanex Corporation shall have been disclosed, announced, commenced, submitted or made and shall not have been withdrawn; and (B) on or prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to an Avanex Corporation is consummated; or (2) a definitive agreement relating to an Acquisition Transaction with respect to an Avanex Corporation is entered into by an Avanex Corporation, then the Company shall pay to Parent (Parent, in cash at the time specified in Section 8.3(c))the following sentence, a nonrefundable fee equal to five million dollars in the amount of $1,640,000 ($5,000,000) (the "Termination Fee") in cash within three (3) days of such termination. (c) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of the date of this Agreement, Company shall pay to Parent the Termination Fee contemporaneously with the earlier of the consummation of such Acquisition Transaction or such announcement regarding a proposed Acquisition Agreement.the

Expenses; Termination Fees. (aA) Except as set forth in this Section 8.3, 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 Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the filing, printing and filing mailing of the Form S-4 Registration Statement and the Joint Prospectus/Proxy Statement/Prospectus Statement and any amendments or supplements thereto. (bB) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 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) this Agreement is terminated by Parent pursuant to Section 8.1(e), then the Company shall pay to Parent (Parent, in cash at the time specified in the next sentence (and in addition to the amounts payable pursuant to Section 8.3(c8.3(a)), a nonrefundable fee in the amount equal to five million dollars ($5,000,000) (3,600,000. The fee referred to in the "Termination Fee") in cash within three (3) preceding sentence shall be paid by the Company no later than 60 calendar days of such termination. (c) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of after the date of termination of this Agreement, Company shall pay to Parent the Termination Fee contemporaneously with the earlier of the consummation of such Acquisition Transaction or such announcement regarding a proposed Acquisition Agreement.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.39.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be 55. paid by the party incurring such expenses, whether or not the Merger is consummated; providedPROVIDED, howeverHOWEVER, that Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the printing and filing of the S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto. (b) If this Agreement is terminated by Parent pursuant to Section 8.1(e9.1(e), then the Company shall pay to Parent (at the time specified Parent, in Section 8.3(c))cash, a nonrefundable fee equal to five one million four hundred thousand dollars ($5,000,0001,400,000) (the "Termination FeeTERMINATION FEE") in cash within three (3) business days of such termination. (c) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d9.1(d) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of any time within six (6) months after the date of termination and consummated within twelve (12) months after the date of termination, the Company shall pay to Parent a nonrefundable fee equal to three percent (3%) of the aggregate consideration received by the Company in such Acquisition Transaction contemporaneously with the consummation of such Acquisition Transaction. (d) If this AgreementAgreement is terminated by the Company pursuant to Section 9.1(f), then the Company shall pay to Parent the Termination Fee contemporaneously with the earlier written notice of the consummation of such Acquisition Transaction or such announcement regarding a proposed Acquisition Agreementtermination.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.3, 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 Parent and the Company shall share equally all fees and expenses, other than attorneys' fees, incurred in connection with the printing and filing of the S-4 Registration Statement and the Joint Proxy Statement/Prospectus and any amendments or supplements thereto. (b) If this Agreement is terminated by Parent pursuant to Section 8.1(eSection 8.1 (e), then the Company shall pay to Parent (at the time specified in Section 8.3(c)), a nonrefundable fee equal to five million dollars ($5,000,000) (the "Termination Fee") in cash within three (3) days of such termination. (c) If this Agreement is terminated by Company or Parent pursuant to Section 8.1(d) and an Acquisition Transaction is consummated or a proposed Acquisition Transaction is publicly announced at anytime prior to the first anniversary of the date of this Agreement, Company shall pay to Parent the Termination Fee contemporaneously with the earlier of the consummation of such Acquisition Transaction or such announcement regarding a proposed Acquisition Agreement.