Common use of Expenses; Termination Fees Clause in Contracts

Expenses; Termination Fees. (a) Except as set forth in this Section 8.04, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such expenses, whether or not the Offer and Merger are consummated. (b) If this Agreement is terminated: by Parent pursuant to Section 8.02(d) or by the Company pursuant to Section 8.02(g), then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $8,500,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid within two Business Days after termination of this Agreement. (c) Any fee due under this Section 8.04 shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent to the Company. If the Company fails to pay when due any amount payable by it under this Section 8.04, then: (i) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.04; and (ii) the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as announced by Citibank, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or (ii) the maximum rate permitted by applicable Legal Requirements.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.048.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such expenses, whether or not the Offer 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 filing by the parties hereto of the premerger notification and report forms relating to the Merger are consummatedunder the HSR Act and the filing of any notice or other document under any applicable non-U.S. Antitrust Law. (b) If this Agreement is terminatedterminated by: by Parent pursuant to Section 8.02(d(i) or by the Company pursuant to Section 8.02(g8.1(i); or (ii) Parent pursuant to Section 8.1(f); or (iii) Parent or the Company pursuant to Section 8.1(e) and, in the case of Section 8.1 (e) only, prior to the time of the failure to so approve this Agreement, the Merger or the other Required Approval Transactions, an Acquisition Transaction with respect to the Company shall have been publicly announced; then the Company shall pay to Parent, in cash at the time specified in the following sentence, Parent a nonrefundable fee in the amount of $8,500,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid within two Business Days after termination of this Agreement15.5 million in cash. (c) Any fee due under this Section 8.04 shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent to the Company. If the Company fails promptly to pay when due any amount payable by it the Company under this Section 8.048.3, then: (i) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.048.3; and (ii) the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as announced by Citibank, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or (ii) the maximum rate permitted by applicable Legal RequirementsLIBOR plus 3%.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.048.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated by this Agreement shall be paid by the party incurring such expenses, whether or not the Offer Merger is consummated; provided, however, that Parent and Merger are consummated. 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 (bi) If this Agreement is terminated: 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 8.02(d) or by the Company pursuant to Section 8.02(g8.1(e), then the Company shall pay to Parent, in cash at the time specified in the following sentencenext sentence (and in addition to the amounts payable pursuant to Section 8.3(a)), a nonrefundable fee in the amount of equal to $8,500,000 (the “Company Termination Fee”)3,600,000. The Company Termination Fee fee referred to in the preceding sentence shall be paid within two Business Days by the Company no later than 60 calendar days after the date of termination of this Agreement. (c) Any fee due under this Section 8.04 shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent to the Company. If the Company fails to pay when due any amount payable by it under this Section 8.048.3, then: then (i) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.04; 8.3, and (ii) the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “"prime rate” " (as announced by Citibank, N.A. Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or (ii) the maximum rate permitted by applicable Legal Requirements.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.049.3, 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 Offer and Merger are is consummated. (b) If this Agreement is terminated: terminated by Parent either Party pursuant to Section 8.02(d9.1(h), Parent shall, within ten (10) or by business days of such termination (i) pay to the Company pursuant a non-refundable fee equal to Section 8.02(g), then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $8,500,000 375,000 (the “Company Termination FeePayment”). The Company Termination Fee shall be paid within two Business Days after termination of this Agreement. (c) Any fee due under this Section 8.04 shall be paid by wire transfer of immediately available funds to an account designated in writing by If Parent to the Company. If the Company fails to pay when due any amount payable by it to the Company under this Section 8.049.3, then: then (i) Parent shall reimburse the Company shall reimburse Parent for all reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount amounts and the enforcement by Parent the Company of its rights under this Section 8.04; 9.3, and (ii) the Company such Parent shall pay to Parent the Company interest on such overdue amount amounts (for the period commencing as of the date such overdue amount was amounts were originally required to be paid through and ending on the date such overdue amount is actually paid to Parent the other Party in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as announced by Citibank, N.A. Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or (ii. It is hereby agreed that the Termination Payment shall be the sole and exclusive remedy of the Company for all monetary damages of any kind in the event the Company is entitled to receive such Termination Payment pursuant to Section 9.3(b) the maximum rate permitted by applicable Legal Requirementsabove.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.04, all fees and expenses All Transaction Costs incurred in connection with this Agreement and the Contemplated Transactions shall transactions contemplated by this Agreement will be paid by the party incurring Party that incurred the expense (provided, however, that if the Merger is consummated, such expenses, whether or not fees and expenses will be paid by such Party out of its own cash on-hand prior to the Offer and Merger are consummatedEffective Time). (b) If Company will pay to Parent a termination fee in an amount equal to $250,000 in the event that this Agreement is terminated: by Parent terminated pursuant to Section 8.02(d7.1(d) or by the Company pursuant to Section 8.02(g7.1(f), then the Company shall pay such fee to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $8,500,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid within two 30 Business Days after termination of this Agreementsuch termination. (c) Any Parent will pay to Company a termination fee due under in an amount in cash equal to $250,000 (i) in the event that this Agreement is terminated pursuant to Section 8.04 shall 7.1(g), such fee to be paid by wire transfer within 30 Business Days after such termination, or (ii) in the event this Agreement is terminated pursuant to Section 7.1(e) and an Acquisition Proposal with respect to Parent has been publicly announced, disclosed or otherwise communicated to Parent’s board of immediately available funds to an account designated in writing by Parent directors prior to the Company. termination of this Agreement and, within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to such Acquisition Transaction or consummates such Acquisition Transaction, such fee to be paid not later than 30 Business Days after the Acquisition Transaction is consummated. (d) If the Company fails to pay when due any amount payable by it Company under this Section 8.047.3, then: then (i) the Company shall will reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.04; 7.3, and (ii) the Company shall will pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as announced by Citibank, N.A. Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or . If Parent fails to pay when due any amount payable by Parent under this Section 7.3, then (i) Parent will reimburse Company for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Company of its rights under this Section 7.3, and (ii) Parent will pay to Company interest on such overdue amount (for the maximum 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 Company in full) at a rate permitted per annum equal to the “prime rate” (as announced by applicable Legal RequirementsBank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid.

Expenses; Termination Fees. (a) Except as set forth in this Section 8.04Whether or not the Merger is consummated, (i) all fees Parent Transaction Expenses shall be paid by Parent (or on behalf of Parent) at or prior to the Closing and expenses incurred in connection with this Agreement and the Contemplated Transactions (ii) all Company Transaction Expenses shall be paid by the party incurring such expenses, whether or not the Offer and Merger are consummatedCompany. (b) If this Agreement is terminated: terminated (i) by Parent pursuant to Section 8.02(d9.1(d), or (ii) or by the Company pursuant to Section 8.02(g)9.1(b) and the Company Stockholder Written Consent evidencing the Required Company Stockholder Vote has not been obtained by the Company, then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $8,500,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid Parent within two five Business Days after of such termination of this Agreementan amount equal to $2,000,000. (c) If (i) this Agreement is terminated by either Parent or the Company pursuant to Section 9.1(e), or (ii) by Parent pursuant to Section 9.1(b) and the Required Parent Stockholder Vote has not been obtained by Parent, then Parent shall pay to the Company within five Business Days of such termination an amount equal to $2,000,000. (d) If this Agreement is terminated by the Company pursuant to Section 9.1(h), then Parent shall pay to the Company within five Business Days of such termination an amount equal to $2,000,000. (e) Any fee due payable by the Company or Parent under Section 9.2 or this Section 8.04 9.3 shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent to the Companysame day funds. If the Company a Party fails to pay when due any amount payable by it under Section 9.2 or this Section 8.049.3, then: (i) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of then such overdue amount and the enforcement by Parent of its rights under this Section 8.04; and (ii) the Company Party shall pay to Parent 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 through and ending on the date such overdue amount is actually paid to Parent the other Party in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as announced by Citibank, N.A. published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid; or . (f) The Parties agree that, (i) subject to Section 9.2, any fee payable by Parent to the Company under this Section 9.3, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement under the circumstances described in this Section 9.3, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of any fee payable by Parent to the maximum rate permitted Company under this Section 9.3 (A) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by applicable Legal RequirementsParent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (B) 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 the Contemplated Transactions to be consummated and (C) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective 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; provided, however, that nothing in this Section 9.3(f) shall limit the rights of Parent and Merger Sub under Section 10.11. (g) The Parties agree that, (i) subject to Section 9.2, any fee payable by the Company to Parent under this Section 9.3 shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement under the circumstances described in this Section 9.3, it being understood that in no event shall the Company be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of any fee payable by the Company to Parent under this Section 9.3 (A) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (B) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company 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 the Contemplated Transactions to be consummated and (C) Parent and its Affiliates shall be precluded from any other remedy against the Company 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; provided, however, that nothing in this Section 9.3(g) shall limit the rights of the Company under Section 10.11. (h) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) 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 Company in the circumstances in which such amount is payable.