Common use of Fee and Expense Reimbursements Clause in Contracts

Fee and Expense Reimbursements. (a) The Company agrees to pay EVI a fee in immediately available funds of $60,000,000 (the "Company Termination Fee") promptly upon the termination of the Agreement in the event this Agreement is terminated by the Company pursuant to Section 8.2(b) or by EVI pursuant to Section 8.2(d). (b) In the event this Agreement is terminated for any reason other than a material breach by EVI, the Company also agrees to pay to EVI the Company Termination Fee if (i) after the date hereof and before the termination of this Agreement, a takeover proposal shall have been made and publicly announced by any Person or group of Persons (an "Acquiring Person"), (ii) the stockholders of the Company shall not have approved the Merger and (iii) after the date hereof and at or prior to 12 months after the date of termination of this Agreement, the Acquiring Person or any affiliate of the Acquiring Person shall have effected an Alternative Transaction (as defined below). An Alternative Transaction shall mean (i) a merger, share exchange or other business combination or other transaction in which more than 15% of the voting securities of the Company or a material amount of the assets of the Company and its subsidiaries, taken as a whole, is acquired, including an investment in or acquisition of securities of a subsidiary of the Company to the extent so material, -45- 52 or (ii) any acquisition from the stockholders of the Company by tender offer, exchange offer or otherwise of more than 15% of the outstanding Company Shares. The Company Termination Fee payable under this Section 8.3(b) shall be payable as a condition to the consummation of the Alternative Transaction. (c) Neither the Board of Directors of EVI nor any committee thereof shall, except in connection with the termination of this Agreement pursuant to Section 7.1 (a), (b) or (d), (i) withdraw or modify in a manner adverse to the Company the approval or recommendation by the Board of Directors of EVI or any such committee of this Agreement or the Merger or take any action having such effect or (ii) approve or recommend a Preclusive Transaction. Notwithstanding the foregoing, if the Board of Directors of EVI receives a proposal for a Preclusive Transaction or other takeover proposal involving EVI because of which, in the exercise of its fiduciary obligations (as determined in good faith by a majority of the disinterested members thereof based on advice of outside counsel), it determines it is necessary to withdraw its recommendation or modify its approval or recommendation of this Agreement or the Merger, the Board of Directors may do so and EVI may terminate this Agreement subject to Section 7.2 hereof at any time after midnight on the third business day following giving notice of such determination to the Company by advising the Company that the Board of Directors has received a takeover proposal which it has determined requires such action, specifying the material terms and conditions of such proposal (including the proposed financing for such proposal and a copy of any documents conveying such proposal) and identifying the Person making such proposal. EVI may terminate this Agreement pursuant to the preceding sentence only if the stockholders of EVI shall not yet have voted upon the Merger and EVI shall have paid to the Company the EVI Termination Fee (as hereinafter defined). EVI agrees to pay the Company a fee in immediately available funds of $60,000,000 (the "EVI Termination Fee") promptly upon (i) the termination of this Agreement pursuant to the second sentence of this Section 8.3(c) or (ii) the stockholders of EVI not approving the Merger as a result of a hostile takeover of EVI after the date of this Agreement. For purposes hereof, a "takeover proposal involving EVI" shall mean (i) any proposal or offer for a merger, share exchange or other business combination involving EVI (excluding an acquisition otherwise permitted to be made by EVI under this Agreement and which does not involve a direct merger with or into EVI), (ii) any proposal or offer to acquire from EVI or any of its affiliates in any manner, directly or indirectly, a greater than 15% voting or equity interest in EVI or the acquisition of a material amount of the assets of EVI and its subsidiaries taken as a whole, including an investment in or acquisition of securities of a subsidiary of EVI to the extent so material, or (iii) any proposal or offer to acquire from the stockholders of EVI by tender offer, exchange offer or otherwise, more than 15% of the EVI Common Stock then outstanding.

Fee and Expense Reimbursements. (a) The Company agrees to pay EVI Parent a fee in immediately available funds of $60,000,000 15,000,000 (the "Company Termination Fee") promptly upon the termination of the Agreement in the event this Agreement is terminated by Parent or the Company pursuant to Section 8.2(b) or by EVI 7.1(c). The Termination Fee shall be payable promptly upon termination of this Agreement in the event of a termination pursuant to Section 8.2(d7.1(c). (b) In the event this Agreement is terminated for any reason other than a material breach by EVIParent or Sub, the Company also agrees to pay to EVI Parent the Company Termination Fee if (i) after the date hereof and before the termination of this Agreement, a takeover proposal shall have been made and publicly announced by any Person or group of Persons (an "Acquiring Person"), (ii) the stockholders of the Company shall not have approved the Merger and (iii) after the date hereof and at or prior to 12 six months after the date of termination of this Agreement, the Acquiring Person or any affiliate of the Acquiring Person shall have effected an Alternative Transaction (as defined below). An Alternative Transaction shall mean (i) a merger, share exchange any merger or other business combination involving the Company, (ii) any acquisition from the Company or other transaction in which more than any subsidiary of 15% of the voting securities of the Company or any subsidiary or a material amount of the assets of the Company and its subsidiaries, taken as a whole, is acquired, including an investment in or acquisition of securities of a subsidiary of the Company to the extent so material, -45- 52 or (iiiii) any acquisition from the stockholders of the Company by tender offer, exchange offer or otherwise of more than 15% of the outstanding Company Shares. The Company Termination Fee payable under this Section 8.3(b) shall be payable as a condition to the consummation of the Alternative Transaction. (c) Neither In the event the Board of Directors of EVI nor any committee thereof shall, except in connection with the termination of this Agreement pursuant to Section 7.1 (a), (b) or (d), (i) withdraw or modify in a manner adverse to the Company the approval or recommendation by the Board of Directors of EVI or any such committee of this Agreement or the Merger or take any action having such effect or (ii) approve or recommend a Preclusive Transaction. Notwithstanding the foregoing, if the Board of Directors of EVI Parent receives a proposal for a Preclusive Transaction or other takeover proposal involving EVI Parent because of which, in the exercise of its fiduciary obligations (as determined in good faith by a majority of the disinterested members thereof based on advice of outside counsel), it determines it is necessary to withdraw its recommendation or modify its approval or recommendation of this Agreement or the Merger, the Board of Directors may do so and EVI Parent may terminate this Agreement subject to Section 7.2 hereof at any time after midnight on the third business day following giving notice of such determination is provided to the Company by advising the Company that the Board of Directors has received a takeover proposal which it has determined requires such action, specifying the material terms and conditions of such proposal (including the proposed financing for such proposal and a copy of any documents conveying such proposal) and identifying the Person making such proposal. EVI Parent may terminate this Agreement pursuant to the preceding sentence only if the stockholders of EVI Parent shall not yet have voted upon the Merger and EVI Parent shall have paid to the Company the EVI Parent Termination Fee (as hereinafter defined). EVI Parent agrees to pay the Company a fee in immediately available funds of $60,000,000 15,000,000 (the "EVI Parent Termination Fee") promptly upon (i) the termination of this Agreement pursuant to the second first sentence of this Section 8.3(c) or (ii) the stockholders of EVI Parent not approving the Merger as a result of a hostile takeover of EVI the Parent after the date of this Agreement. For purposes hereof, a "takeover proposal involving EVIParent" shall mean (i) any proposal or offer for a merger, share exchange merger or other business combination involving EVI (excluding an acquisition otherwise permitted to be made by EVI under this Agreement and which does not involve a direct merger with or into EVI)the Parent, (ii) any proposal or offer to acquire from EVI or any of its affiliates in any manner, directly or indirectly, a greater than 15% voting or equity interest in EVI or the acquisition of a material amount of the assets of EVI and its subsidiaries taken as a whole, including an investment in or acquisition of securities of a subsidiary of EVI to the extent so material, or (iii) any proposal or offer to acquire from the stockholders of EVI by tender offer, exchange offer or otherwise, more than 15% of the EVI Common Stock then outstanding.

Fee and Expense Reimbursements. (a) The Company agrees to pay EVI a fee in immediately available funds of $60,000,000 (the "Company Termination Fee") promptly upon the termination of the Agreement in In the event that (x) any Person shall have made an Acquisition Proposal and thereafter this Agreement is terminated by the Company TAL pursuant to Section 8.2(b7.1(d)(iii) or by (y) the Board of Directors of Taro shall have withdrawn or modified in a manner adverse to EVI or TAL the Recommendation or shall have recommended an Acquisition Proposal to the Taro Common Shareholders and EVI and TAL shall have terminated this Agreement pursuant to Section 8.2(d7.1(d)(iii). , then Taro shall promptly, but in no event later than two days after such termination, pay TAL a fee of $1.0 million (bthe "Taro Payment") In the event or (z) this Agreement is terminated for any reason other than those set forth in clauses (x) or (y) above or in Section 7.1(c), and if within 12 months thereafter any Acquisition Proposal shall have been consummated, then Taro shall promptly, but in no event later than two days after consummation of any such transaction, pay TAL the Taro Payment. Any amount payable hereunder shall be payable by wire transfer of same day funds. Taro acknowledges that the agreements contained in this Section 7.3(a) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, EVI and TAL would not enter into this Agreement; accordingly, if Taro fails to promptly pay the amount due pursuant to this Section 7.3(a), and, in order to obtain such payment, EVI or TAL commences a material breach by EVIsuit that results in a judgment against Taro for the fee set forth in this Section 7.3(a), the Company also agrees to Taro shall pay to EVI and TAL their costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the Company Termination Fee if (i) after the date hereof and before the termination of this Agreement, a takeover proposal shall have been made and publicly announced by any Person or group of Persons (an "Acquiring Person"), (ii) the stockholders of the Company shall not have approved the Merger and (iii) after the date hereof and at or prior to 12 months after the date of termination of this Agreement, the Acquiring Person or any affiliate of the Acquiring Person shall have effected an Alternative Transaction (as defined below). An Alternative Transaction shall mean (i) a merger, share exchange or other business combination or other transaction in which more than 15% of the voting securities of the Company or a material amount of the assets fee at the rate of the Company and its subsidiaries, taken as a whole, is acquired, including an investment in or acquisition of securities of a subsidiary of the Company to the extent so material, -45- 52 or (ii) any acquisition from the stockholders of the Company by tender offer, exchange offer or otherwise of more than 1512% of the outstanding Company Shares. The Company Termination Fee payable under this Section 8.3(b) shall be payable as a condition to the consummation of the Alternative Transactionper annum. (cb) Neither In the Board of Directors of EVI nor any committee thereof shall, except in connection with the termination of event that Taro shall have terminated this Agreement pursuant to Section 7.1 (a7.1(c), (b) or (d), (i) withdraw or modify such termination shall be without prejudice to any other remedy available to Taro in a manner adverse respect of damages to the Company the approval or recommendation by the Board of Directors of EVI or any Taro arising in connection with such committee of this Agreement or the Merger or take any action having such effect or (ii) approve or recommend a Preclusive Transaction. Notwithstanding the foregoing, if the Board of Directors of EVI receives a proposal for a Preclusive Transaction or other takeover proposal involving EVI because of which, in the exercise of its fiduciary obligations (as determined in good faith by a majority of the disinterested members thereof based on advice of outside counsel), it determines it is necessary to withdraw its recommendation or modify its approval or recommendation of this Agreement or the Merger, the Board of Directors may do so and EVI may terminate this Agreement subject to Section 7.2 hereof at any time after midnight on the third business day following giving notice of such determination to the Company by advising the Company that the Board of Directors has received a takeover proposal which it has determined requires such action, specifying the material terms and conditions of such proposal (including the proposed financing for such proposal and a copy of any documents conveying such proposal) and identifying the Person making such proposal. EVI may terminate this Agreement pursuant to the preceding sentence only if the stockholders of EVI shall not yet have voted upon the Merger and EVI shall have paid to the Company the EVI Termination Fee (as hereinafter defined). EVI agrees to pay the Company a fee in immediately available funds of $60,000,000 (the "EVI Termination Fee") promptly upon (i) the termination of this Agreement pursuant to the second sentence of this Section 8.3(c) or (ii) the stockholders of EVI not approving the Merger as a result of a hostile takeover of EVI after the date of this Agreement. For purposes hereof, a "takeover proposal involving EVI" shall mean (i) any proposal or offer for a merger, share exchange or other business combination involving EVI (excluding an acquisition otherwise permitted to be made by EVI under this Agreement and which does not involve a direct merger with or into EVI), (ii) any proposal or offer to acquire from EVI or any of its affiliates in any manner, directly or indirectly, a greater than 15% voting or equity interest in EVI or the acquisition of a material amount of the assets of EVI and its subsidiaries taken as a whole, including an investment in or acquisition of securities of a subsidiary of EVI to the extent so material, or (iii) any proposal or offer to acquire from the stockholders of EVI by tender offer, exchange offer or otherwise, more than 15% of the EVI Common Stock then outstandingtermination.

Fee and Expense Reimbursements. (a) The Company agrees to pay EVI Parent a fee in immediately available funds of $60,000,000 2,000,000 (the "Company Termination Fee") promptly upon the termination of the Agreement in the event this Agreement is terminated by Parent or the Company pursuant to as permitted by Section 8.2(b) or by EVI pursuant to Section 8.2(d). (b) In 8.2. Further, in the event the stockholders of the Company do not approve the Merger and this Agreement is terminated for any reason other than a material breach by EVIterminated, the Company also agrees to pay to EVI Parent the Company Termination Fee if (i) if, after the date hereof and before the termination of this Agreement or within six months following the date of termination of this Agreement, a takeover proposal shall have been made and publicly announced by any Person or group made; provided that such takeover is ultimately consummated. The Termination Fee shall be payable promptly upon termination of Persons (an "Acquiring Person"), (ii) this Agreement if the stockholders of the Company foregoing events shall not have approved the Merger and (iii) after the date hereof and at or occurred prior to 12 months after termination. Otherwise, the date Termination Fee shall be payable promptly upon the consummation of such takeover following termination of this Agreement, the Acquiring Person or any affiliate of the Acquiring Person shall have effected an Alternative Transaction (as defined below). An Alternative Transaction shall mean (i) a merger, share exchange or other business combination or other transaction in which more than 15% of the voting securities of the Company or a material amount of the assets of the Company and its subsidiaries, taken as a whole, is acquired, including an investment in or acquisition of securities of a subsidiary of the Company to the extent so material, -45- 52 or (ii) any acquisition from the stockholders of the Company by tender offer, exchange offer or otherwise of more than 15% of the outstanding Company Shares. The Company Termination Fee payable under this Section 8.3(b) shall be payable as a condition to the consummation of the Alternative Transaction. (cb) Neither In the event the Board of Directors of EVI nor any committee thereof shall, except in connection with the termination of this Agreement pursuant to Section 7.1 (a), (b) or (d), (i) withdraw or modify in a manner adverse to the Company the approval or recommendation by the Board of Directors of EVI or any such committee of this Agreement or the Merger or take any action having such effect or (ii) approve or recommend a Preclusive Transaction. Notwithstanding the foregoing, if the Board of Directors of EVI Parent receives a proposal for a Preclusive Transaction or other takeover proposal involving EVI Parent because of which, in the exercise of its fiduciary obligations (as determined in good faith by a majority of the disinterested members thereof based on advice of outside counsel), it determines it is necessary to withdraw its recommendation or modify its approval or recommendation of this Agreement or the Merger, the Board of Directors may do so and EVI Parent may terminate this Agreement subject to Section 7.2 hereof at any time after midnight on the third next business day following giving notice of such determination to the Company by advising the Company that the Board of Directors has received a takeover proposal which it has determined requires such action, specifying the material terms and conditions of such proposal (including the proposed financing for such proposal and a copy of any documents conveying such proposal) and identifying the Person person making such proposal. EVI Parent may terminate this Agreement pursuant to the preceding sentence only if the stockholders of EVI Parent shall not yet have voted upon the Merger and EVI Parent shall have paid to the Company the EVI Parent Termination Fee (as hereinafter defined). EVI Parent agrees to pay the Company a fee in immediately available funds of $60,000,000 2,000,000 (the "EVI Parent Termination Fee") promptly upon (i) the termination of this Agreement pursuant to the second first sentence of this Section 8.3(c8.3(b) or (ii) the stockholders of EVI Parent not approving the Merger as a result of a hostile takeover of EVI the Parent after the date of this Agreement. For purposes hereof, a "takeover proposal involving EVIParent" shall mean (i) any proposal or offer for a merger, share exchange merger or other business combination involving EVI (excluding an acquisition otherwise permitted to be made by EVI under this Agreement and which does not involve a direct merger with or into EVI)the Parent, (ii) any proposal or offer to acquire from EVI the Parent or any of its affiliates in any manner, directly or indirectly, a greater than 15% voting or an equity interest in EVI the Parent or any subsidiary, any voting securities of the acquisition of Parent or any subsidiary or a material amount of the assets of EVI the Parent and its subsidiaries taken as a whole, including an investment in or acquisition of securities of a subsidiary of EVI to the extent so material, or (iii) any proposal or offer to acquire from the stockholders of EVI Parent by tender offer, exchange offer or otherwise, more than 1520% of the EVI Common Stock then outstandingParent common stock. (c) In the event this Agreement is terminated by Parent or the Company pursuant to Sections 7.1(b)(i) or (d), the Company shall assume and pay, or reimburse Parent for, all reasonable fees and expenses incurred by Parent or Sub (including the fees and expenses of its counsel, accountants and financial advisors) through the date of termination and which are specifically related to the Merger, this Agreement and the matters contemplated by this Agreement, but not to exceed $300,000 in the aggregate, promptly, but in no event later than two business days after submission of a request for payment of the same. (d) In the event this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(ii) or (e), Parent shall assume and pay, or reimburse the Company for, all reasonable fees and expenses incurred by the Company (including the fees and expenses of its counsel, accountants and financial advisors) through the date of termination and which are specifically related to the Merger, this Agreement and the matters contemplated by this Agreement, but not to exceed $300,000 in the aggregate, promptly, but in no event later than two business days after the submission of a request for payment of the same.

Fee and Expense Reimbursements. (a) The Company agrees to shall pay EVI Parent a fee in immediately available funds of $60,000,000 11.5 million (the "“Company Termination Fee"”) promptly upon the termination of the Agreement in the event this Agreement is terminated by the Company pursuant to Section 8.2(b) or by EVI pursuant to Section 8.2(d). (b) In the event this Agreement is terminated for any reason other than a material breach by EVI, the Company also agrees to pay to EVI the Company Termination Fee if (i) after the date hereof and before the termination of this Agreement, a takeover proposal shall have been made and publicly announced by any Person or group of Persons (an "Acquiring Person"), (ii) the stockholders of the Company shall not have approved the Merger and (iii) after the date hereof and at or prior to 12 months after the date of termination of this Agreement, the Acquiring Person or any affiliate of the Acquiring Person shall have effected an Alternative Transaction (as defined below). An Alternative Transaction shall mean (i) a merger, share exchange or other business combination or other transaction in which more than 15% of the voting securities of the Company or a material amount of the assets of the Company and its subsidiaries, taken as a whole, is acquired, including an investment in or acquisition of securities of a subsidiary of the Company to the extent so material, -45- 52 or (ii) any acquisition from the stockholders of the Company by tender offer, exchange offer or otherwise of more than 15% of the outstanding Company Shares. The Company Termination Fee payable under this Section 8.3(b) shall be payable as a condition to the consummation of the Alternative Transaction.simultaneously with: (c) Neither the Board of Directors of EVI nor any committee thereof shall, except in connection with the termination of this Agreement pursuant to Section 7.1 (a), (b) or (d), (i) withdraw or modify in a manner adverse to the Company the approval or recommendation by the Board of Directors of EVI or any such committee of this Agreement or the Merger or take any action having such effect or (ii) approve or recommend a Preclusive Transaction. Notwithstanding the foregoing, if the Board of Directors of EVI receives a proposal for a Preclusive Transaction or other takeover proposal involving EVI because of which, in the exercise of its fiduciary obligations (as determined in good faith by a majority of the disinterested members thereof based on advice of outside counsel), it determines it is necessary to withdraw its recommendation or modify its approval or recommendation of this Agreement or the Merger, the Board of Directors may do so and EVI may terminate this Agreement subject to Section 7.2 hereof at any time after midnight on the third business day following giving notice of such determination to the Company by advising the Company that the Board of Directors has received a takeover proposal which it has determined requires such action, specifying the material terms and conditions of such proposal (including the proposed financing for such proposal and a copy of any documents conveying such proposal) and identifying the Person making such proposal. EVI may terminate this Agreement pursuant to the preceding sentence only if the stockholders of EVI shall not yet have voted upon the Merger and EVI shall have paid to the Company the EVI Termination Fee (as hereinafter defined). EVI agrees to pay the Company a fee in immediately available funds of $60,000,000 (the "EVI Termination Fee") promptly upon (i) the termination of this Agreement pursuant to by the second sentence Company as permitted by Section 9.2(b); (ii) the termination of this Section 8.3(cAgreement following (i) the Board of Directors of the Company having taken any of the actions set forth in clause (i) or (ii) of Section 9.2(b) and, (ii) within two business days of taking any such action, the stockholders Board of EVI Directors of the Company has not approving reinstated its recommendation of this Agreement or withdrawn its approval or recommendation or both of any such Acquisition Proposal; (iii) the Merger termination of this Agreement by Parent as permitted by Section 8.1(f)(iv); (b) Subject to Section 9.3(c), if within 365 days after the date of this Agreement any of the events described in subsections (i) — (iii) below occurs and Parent terminates or has terminated this Agreement under the circumstances described in Section 9.3(c), the Company shall promptly pay to Parent (and no later than one (1) business day after the first to occur of any of the events described in subsections (i) — (iii) below) an amount equal to the Company Termination Fee: (i) a transaction is consummated, which transaction, if offered or proposed, would constitute an Acquisition Proposal; provided, that all references in the definition of Acquisition Proposal to 20% shall be deemed references to 50% for purposes of this Section 9.3(b)(i); (ii) a definitive agreement (the execution and delivery of which has been authorized by the Board of Directors of the Company) that would if consummated constitute an Acquisition Proposal is entered into; provided, that all references in the definition of Acquisition Proposal to 20% shall be deemed references to 50% for purposes of this Section 9.3(b)(ii); or (iii) (A) any Person acquires beneficial ownership or the right to acquire beneficial ownership of, or any “group” (as such term is defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated hereunder), shall have been formed that beneficially owns, or has the right to acquire beneficial ownership of, outstanding shares of capital stock of the Company then representing 50% or more of the combined power to vote generally for the election of directors, and (B) the Company’s Board of Directors has taken any action for the benefit of such person, that facilitates the acquisition by such person or group of such beneficial ownership. (c) The Company Termination Fee shall be payable pursuant to Section 9.3(b) only if Parent terminates or has terminated this Agreement (i) as permitted by Section 8.1(b)(ii) or Section 8.1(d), in each case at a time when a Company Breach exists as a result of a hostile takeover of EVI after willful act or omission by the date of this Agreement. For purposes hereof, a "takeover proposal involving EVI" shall mean (i) any proposal Company or offer for a merger, share exchange or other business combination involving EVI (excluding an acquisition otherwise permitted to be made by EVI under this Agreement and which does not involve a direct merger with or into EVI), (ii) any proposal or offer to acquire from EVI or any of its affiliates in any manner, directly or indirectly, as permitted by Section 8.1(f)(iii) at a greater than 15% voting or equity interest in EVI or the acquisition of a material amount of the assets of EVI and its subsidiaries taken as a whole, including time that an investment in or acquisition of securities of a subsidiary of EVI to the extent so material, or (iii) any proposal or offer to acquire from the stockholders of EVI by tender offer, exchange offer or otherwise, more than 15% of the EVI Common Stock then outstandingAcquisition Proposal is pending.

Fee and Expense Reimbursements. (a) The Company agrees to shall pay EVI Parent a fee in immediately available funds of $60,000,000 11.5 million (the "Company Termination Fee") promptly upon the termination of the Agreement in the event this Agreement is terminated by the Company pursuant to Section 8.2(b) or by EVI pursuant to Section 8.2(d). (b) In the event this Agreement is terminated for any reason other than a material breach by EVI, the Company also agrees to pay to EVI the Company Termination Fee if (i) after the date hereof and before the termination of this Agreement, a takeover proposal shall have been made and publicly announced by any Person or group of Persons (an "Acquiring Person"), (ii) the stockholders of the Company shall not have approved the Merger and (iii) after the date hereof and at or prior to 12 months after the date of termination of this Agreement, the Acquiring Person or any affiliate of the Acquiring Person shall have effected an Alternative Transaction (as defined below). An Alternative Transaction shall mean (i) a merger, share exchange or other business combination or other transaction in which more than 15% of the voting securities of the Company or a material amount of the assets of the Company and its subsidiaries, taken as a whole, is acquired, including an investment in or acquisition of securities of a subsidiary of the Company to the extent so material, -45- 52 or (ii) any acquisition from the stockholders of the Company by tender offer, exchange offer or otherwise of more than 15% of the outstanding Company Shares. The Company Termination Fee payable under this Section 8.3(b) shall be payable as a condition to the consummation of the Alternative Transaction.simultaneously with: (c) Neither the Board of Directors of EVI nor any committee thereof shall, except in connection with the termination of this Agreement pursuant to Section 7.1 (a), (b) or (d), (i) withdraw or modify in a manner adverse to the Company the approval or recommendation by the Board of Directors of EVI or any such committee of this Agreement or the Merger or take any action having such effect or (ii) approve or recommend a Preclusive Transaction. Notwithstanding the foregoing, if the Board of Directors of EVI receives a proposal for a Preclusive Transaction or other takeover proposal involving EVI because of which, in the exercise of its fiduciary obligations (as determined in good faith by a majority of the disinterested members thereof based on advice of outside counsel), it determines it is necessary to withdraw its recommendation or modify its approval or recommendation of this Agreement or the Merger, the Board of Directors may do so and EVI may terminate this Agreement subject to Section 7.2 hereof at any time after midnight on the third business day following giving notice of such determination to the Company by advising the Company that the Board of Directors has received a takeover proposal which it has determined requires such action, specifying the material terms and conditions of such proposal (including the proposed financing for such proposal and a copy of any documents conveying such proposal) and identifying the Person making such proposal. EVI may terminate this Agreement pursuant to the preceding sentence only if the stockholders of EVI shall not yet have voted upon the Merger and EVI shall have paid to the Company the EVI Termination Fee (as hereinafter defined). EVI agrees to pay the Company a fee in immediately available funds of $60,000,000 (the "EVI Termination Fee") promptly upon (i) the termination of this Agreement pursuant to by the second sentence Company as permitted by Section 9.2(b); (ii) the termination of this Section 8.3(cAgreement following (i) the Board of Directors of the Company having taken any of the actions set forth in clause (i) or (ii) of Section 9.2(b) and, (ii) within two business days of taking any such action, the stockholders Board of EVI Directors of the Company has not approving reinstated its recommendation of this Agreement or withdrawn its approval or recommendation or both of any such Acquisition Proposal; (iii) the Merger termination of this Agreement by Parent as permitted by Section 8.1(f)(iv); (b) Subject to Section 9.3(c), if within 365 days after the date of this Agreement any of the events described in subsections (i) - (iii) below occurs and Parent terminates or has terminated this Agreement under the circumstances described in Section 9.3(c), the Company shall promptly pay to Parent (and no later than one (1) business day after the first to occur of any of the events described in subsections (i) - (iii) below) an amount equal to the Company Termination Fee: (i) a transaction is consummated, which transaction, if offered or proposed, would constitute an Acquisition Proposal; provided, that all references in the definition of Acquisition Proposal to 20% shall be deemed references to 50% for purposes of this Section 9.3(b)(i); (ii) a definitive agreement (the execution and delivery of which has been authorized by the Board of Directors of the Company) that would if consummated constitute an Acquisition Proposal is entered into; provided, that all references in the definition of Acquisition Proposal to 20% shall be deemed references to 50% for purposes of this Section 9.3(b)(ii); or (iii) (A) any Person acquires beneficial ownership or the right to acquire beneficial ownership of, or any "group" (as such term is defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated hereunder), shall have been formed that beneficially owns, or has the right to acquire beneficial ownership of, outstanding shares of capital stock of the Company then representing 50% or more of the combined power to vote generally for the election of directors, and (B) the Company's Board of Directors has taken any action for the benefit of such person, that facilitates the acquisition by such person or group of such beneficial ownership. (c) The Company Termination Fee shall be payable pursuant to Section 9.3(b) only if Parent terminates or has terminated this Agreement (i) as permitted by Section 8.1(b)(ii) or Section 8.1(d), in each case at a time when a Company Breach exists as a result of a hostile takeover of EVI after willful act or omission by the date of this Agreement. For purposes hereof, a "takeover proposal involving EVI" shall mean (i) any proposal Company or offer for a merger, share exchange or other business combination involving EVI (excluding an acquisition otherwise permitted to be made by EVI under this Agreement and which does not involve a direct merger with or into EVI), (ii) any proposal or offer to acquire from EVI or any of its affiliates in any manner, directly or indirectly, as permitted by Section 8.1(f)(iii) at a greater than 15% voting or equity interest in EVI or the acquisition of a material amount of the assets of EVI and its subsidiaries taken as a whole, including time that an investment in or acquisition of securities of a subsidiary of EVI to the extent so material, or (iii) any proposal or offer to acquire from the stockholders of EVI by tender offer, exchange offer or otherwise, more than 15% of the EVI Common Stock then outstandingAcquisition Proposal is pending.