Common use of FEES UPON TERMINATION Clause in Contracts

FEES UPON TERMINATION. The Company agrees that if this Agreement is --------------------- terminated pursuant to: (a) Section 8.1(b)(ii) and at the time of such termination any person, entity or group (as defined in Section 13(d)(3) of the Exchange Act) (other than Sub or Purchaser) shall have become the beneficial owner of more than 20% of the outstanding Shares (with appropriate adjustments for reclassifications of capital stock, stock dividends, stock splits, reverse stock splits and similar events) and such person, entity or group (or any subsidiary of such person, entity or group) thereafter shall enter into a definitive agreement with the Company to accept an Acquisition Proposal at any time on or prior to the date which is six months after the termination of this Agreement and such transaction is thereafter consummated; (b) Sections 8.1(c)(i) or Section 8.1(d); (c) Section 8.1(c)(ii) and at the time of termination of this Agreement, the Tender Agreement shall have expired in accordance with Section 2 thereof and the Company shall enter into a definitive agreement to accept an Acquisition Proposal at any time on or prior to the date which is six months after the termination of this Agreement; or (d) Section 8.1(c)(iii) and such failure was the result of any action taken by or on behalf of the Company giving rise to an Event specified in paragraph (a), (b), (c), (d), (f), (g) or (i) of Annex I and such action was in breach of the Company's obligations hereunder, and with respect to an Event specified in paragraph (g), if such action was taken by the Company for the purpose of causing Purchaser to terminate this Agreement; then the Company shall pay to Purchaser the sum of $40 million. Such payment shall be made as promptly as practicable but in no event later than (i) in the case of paragraphs (b) and (d) of this Section, two business days following termination of this Agreement, (ii) in the case of paragraph (a) of this Section, upon consummation of such Acquisition Proposal, and (iii) in the case of paragraph (c) of this Section, upon entering into a definitive agreement to accept such Acquisition Proposal. Each such payment shall be made by wire transfer of immediately available funds to an account designated by Purchaser without set-off or deduction.

FEES UPON TERMINATION. The Company agrees (a) In the event that if this Agreement is --------------------- terminated pursuant tovalidly terminated: (ai) (x) by Buyer or Seller pursuant to Section 8.1(b)(ii10.1(d) and (y) at the time of such termination any person, entity or group (as defined in Section 13(d)(3) each of the Exchange Act) conditions in Article 8 have been satisfied (other than Sub or Purchaser) shall have become Section 8.4 and those conditions that by their nature are only to be satisfied at the beneficial owner Closing, provided that such conditions were capable of more than 20% of being satisfied if the outstanding Shares (with appropriate adjustments for reclassifications of capital stock, stock dividends, stock splits, reverse stock splits and similar events) and such person, entity or group (or any subsidiary date of such person, entity or group) thereafter shall enter into a definitive agreement with termination were deemed to be the Company to accept an Acquisition Proposal at any time on or prior to the date which is six months after the termination of this Agreement and such transaction is thereafter consummated;Closing Date); or (bii) Sections 8.1(c)(i(x) by Seller pursuant to Section 10.1(c), or (y) by Seller pursuant to Section 8.1(d); 10. 1(d) (c) Section 8.1(c)(ii) and where at the time of termination of this Agreement, the Tender Agreement shall have expired in accordance with Section 2 thereof and the Company shall enter into a definitive agreement to accept an Acquisition Proposal at any time on or prior to the date which is six months after the termination of this Agreement; or (d) Section 8.1(c)(iii) and such failure Seller was the result of any action taken by or on behalf of the Company giving rise to an Event specified in paragraph (a), (b), (c), (d), (f), (g) or (i) of Annex I and such action was in breach of the Company's obligations hereunder, and with respect to an Event specified in paragraph (g), if such action was taken by the Company for the purpose of causing Purchaser entitled to terminate this Agreement; then Agreement pursuant to Section 10.1(c), then, in any such event, Buyer shall pay, or cause to be paid to, Seller a fee equal to $25,000,000 (the Company shall pay to Purchaser the sum of $40 million. Such payment “ Termination Fee”), which amount shall be made as promptly as practicable but payable by wire transfer of immediately available funds, within five (5) Business Days of the termination to an account designated in no event later than writing by Seller. (b) Buyer shall not be obligated to pay the Termination Fee if (i) in the case of paragraphs (bSection 10.3(a)(i) and (d) above, Seller’s or the Companies’ breach of any of their covenants or agreements under this SectionAgreement will have been the principal cause of, two business days following termination or will have directly resulted in, the failure of this Agreementthe condition set forth in Section 8.4 to be satisfied, (ii) in the case of paragraph (aSection 10. 3(a)(ii) above, Seller’s or the Companies’ breach of any of their covenants or agreements under this SectionAgreement will have been the principal cause of, upon consummation or will have directly resulted in, the inability of such Acquisition ProposalBuyer to effect the Closing, and or (iii) in at the case time of paragraph such termination Buyer was entitled to terminate this Agreement pursuant to Section 10.1(b). (c) Notwithstanding anything to the contrary in this Agreement, Seller acknowledges and agrees on behalf of itself, the Companies, the Fabri-Kal Subsidiaries and its affiliates that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller in the circumstances in which the Termination Fee is payable for the efforts, expenses and resources expended and opportunity forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Seller acknowledges and hereby agrees that in no event shall Buyer be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable under more than one provision of this SectionAgreement at the same or at different time and the occurrence of different events. (d) If Buyer fails to pay in a timely manner the Termination Fee due pursuant to Section 10.3(a), upon entering into and, in order to obtain such payment, Seller makes a definitive agreement claim that results in a judgment for the Termination Fee (or a portion thereof) set forth in Section 10.3(a), Buyer shall pay to accept Seller its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Acquisition Proposal. Each suit, together with interest on the Termination Fee at the prime rate of JPMorgan Chase Bank, N.A. in effect from time to time from the date such payment was required to be made hereunder. (e) Notwithstanding anything to the contrary in this Agreement, but subject to Section 11.17, in the event that Buyer breaches this Agreement (whether willfully, intentionally, unintentionally or otherwise) or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then the sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) against Buyer or, without limiting Section 11.18, any of its stockholders, directors, officers, employees, agents, Affiliates, attorneys, advisors or other Representatives, or any of their respective successors and assigns (the “Buyer Related Parties”) for any breach (whether willfully, intentionally, unintentionally or otherwise), loss, damage or failure to perform (whether willfully, intentionally, unintentionally or otherwise) under, this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of any oral representation made or alleged to have been made in connection herewith or therewith shall be made for Seller to terminate this Agreement as provided herein and receive payment of the Termination Fee if payable in accordance with this Section 10.3, and upon payment of such amount (x) none of the Buyer Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (whether in equity or at Law, in Contract, in tort or otherwise, and whether by wire transfer or through attempted piercing of immediately available funds the corporate, limited liability company or partnership veil, by or through a claim by or on behalf of a party or another Person or otherwise) and (ii) none of Seller, the Companies and their Subsidiaries and any of their respective Affiliates shall be entitled to bring, and in no event support, facilitate or encourage, the bringing of any litigation (under any legal theory, whether sounding in Law or in equity (in each case whether for breach of contract, in tort or otherwise) against any Buyer Related Parties with respect to, arising out of, or in connection with, the failure of the Closing to occur or for a breach or failure to perform hereunder or otherwise (in any case, whether willfully, intentionally, unintentionally or otherwise), and the Seller, the Companies and their Subsidiaries and any of their respective Affiliates, as the case may be, shall cause any such litigation pending as of any termination of this Agreement to be dismissed with prejudice as promptly as practicable after such termination. Under no circumstances shall the collective monetary damages payable for non-compliance with or breaches by Buyer (in each case, whether knowingly, willfully, intentionally or unintentionally or otherwise, and including any fraud) under this Agreement exceed an account designated aggregate amount equal to the Termination Fee. Seller and Buyer acknowledge and agree that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller in the circumstances in which the Termination Fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by Purchaser without set-off or deductionthis Agreement, which amount would otherwise be uncertain and incapable of accurate determination. The Parties acknowledge and agree that in no event shall Buyer be required to pay the Termination Fee on more than one occasion.

FEES UPON TERMINATION. The Company agrees that if this Agreement is --------------------- terminated pursuant to: (a) Section 8.1(b)(ii8.1(b)(i) and at the time of such termination any person, entity or group (as defined in Section 13(d)(3) of the Exchange Act) (other than Sub Parent or Purchaserany of its affiliates) shall have become the beneficial owner of more than 2030% of the outstanding Shares (with appropriate adjustments for reclassifications of capital stock, stock dividends, stock splits, reverse stock splits and similar events) and such person, entity or group (or any subsidiary of such person, entity or group) thereafter shall enter into a definitive written agreement with the Company to accept an Acquisition Proposal at any time on or prior to the date which is six months after the termination of this Agreement and such transaction is thereafter consummated; (b) Sections 8.1(c)(i8.1(c)(i)(2) or Section 8.1(d8.1(d)(i);; or (c) Section Sections 8.1(c)(i)(1), 8.1(c)(ii) or 8.1(c)(iii), and at in each case, prior to the time of termination of this Agreement, there shall exist a bona fide Acquisition Proposal that has been made known to the Tender Agreement shall have expired in accordance with Section 2 thereof Company or publicly announced by a third party that is more favorable from a financial point of view than the Offer and the Merger, the Company shall enter into a definitive written agreement to accept an Acquisition Proposal from such party at any time on or prior to the date which is six months after the termination of this Agreement; orAgreement and such transaction shall thereafter be consummated; (d) Section 8.1(c)(iii) and such failure was the result of any action taken by or on behalf of the Company giving rise to an Event specified in paragraph (a), (b), (c), (d), (f), (g) or (i) of Annex I and such action was in breach of the Company's obligations hereunder, and with respect to an Event specified in paragraph (g), if such action was taken by the Company for the purpose of causing Purchaser to terminate this Agreement; then the Company shall pay to Purchaser the sum of $40 millionTermination Amount (as defined below). Such payment shall be made as promptly as practicable but in no event later than (i) in the case of paragraphs paragraph (b) and (d) of this Section, two business days following termination of this Agreement, (ii) in the case of paragraph (a) of this Section, upon consummation of such Acquisition Proposal, and (iii) in the case of paragraph (c) of this Section, upon entering into a definitive agreement to accept such Acquisition Proposal. Each such payment shall be made by wire transfer of immediately available funds to an account designated by Purchaser without set-off or deduction. The term "Termination Amount" as used herein shall mean (i) if (A) any third party has on or prior to July 26, 1999, and, at such time, the Company was not in violation of Section 6.6 hereof, (x) made a bona fide Acquisition Proposal or (y) requested that the Company enter into negotiations or discussions concerning an Acquisition Proposal or possible Acquisition Proposal and has indicated a potential price or range of prices in connection therewith, and (B) a payment is required to be made pursuant to this Section 8.3 by the Company to Purchaser as a result of the Company entering into a written agreement to accept an Acquisition Proposal with any such third party or such third party acquiring 50% or more of the outstanding Shares, $10,662,000 and (ii), in each other circumstance, $42,648,000.

FEES UPON TERMINATION. The Company agrees that if this Agreement is --------------------- terminated pursuant to: (a) Section 8.1(b)(ii8.1(b)(i) and at the time of such termination any person, entity or group (as defined in Section 13(d)(3) of the Exchange Act) (other than Sub Parent or Purchaserany of its affiliates) shall have become the beneficial owner of more than 2030% of the outstanding Shares (with appropriate adjustments for reclassifications of capital stock, stock dividends, stock splits, reverse stock splits and similar events) and such person, entity or group (or any subsidiary of such person, entity or group) thereafter shall enter into a definitive written agreement with the Company to accept an Acquisition Proposal at any time on or prior to the date which is six months after the termination of this Agreement and such transaction is thereafter consummated; (b) Sections 8.1(c)(i8.1(c)(i)(2) or Section 8.1(d8.1(d)(i);; or (c) Section Sections 8.1(c)(i)(1), 8.1(c)(ii) or 8.1(c)(iii), and at in each case, prior to the time of termination of this Agreement, there shall exist a bona fide Acquisition Proposal that has been made known to the Tender Agreement shall have expired in accordance with Section 2 thereof Company or publicly announced by a third party that is more favorable from a financial point of view than the Offer and the Merger, the Company shall enter into a definitive written agreement to accept an Acquisition Proposal from such party at any time on or prior to the date which is six months after the termination of this Agreement; orAgreement and such transaction shall thereafter be consummated; (d) Section 8.1(c)(iii) and such failure was the result of any action taken by or on behalf of the Company giving rise to an Event specified in paragraph (a), (b), (c), (d), (f), (g) or (i) of Annex I and such action was in breach of the Company's obligations hereunder, and with respect to an Event specified in paragraph (g), if such action was taken by the Company for the purpose of causing Purchaser to terminate this Agreement; then the Company shall pay to Purchaser the sum of $40 millionTermination Amount (as defined below). Such payment shall be made as promptly as practicable but in no event later than (i) in the case of paragraphs paragraph (b) and (d) of this Section, two business days following termination of this Agreement, (ii) in the case of paragraph (a) of this Section, upon consummation of such Acquisition Proposal, and (iii) in the case of paragraph (c) of this Section, upon entering into a definitive agreement to accept such Acquisition Proposal. Each such payment shall be made by wire transfer of immediately available funds to an account designated by Purchaser without set-off or deduction.. The term "Termination Amount" as used herein shall mean (i) if (A) any third party has on or prior to July 26, 1999, and, at such time, the Company was not in violation of Section 6.6 hereof, (x) made a bona fide Acquisition Proposal or (y) requested that the Company enter into negotiations or discussions concerning an Acquisition Proposal or possible Acquisition Proposal and has indicated a potential price or range of prices in connection therewith, and (B) a payment is required to be made pursuant to this Section