Common use of Termination Fee and Expense Fee Clause in Contracts

Termination Fee and Expense Fee. (a) In addition to any other amounts which may be payable or become payable pursuant to this Agreement, the Company shall, at the Closing and from time to time after the Closing, or in the case of any termination of this Agreement other than termination by the Company pursuant to Section 6.1(d)(ii) or (iii), promptly, but in no event later than five business days after such termination, reimburse Investor for all its out-of-pocket expenses and fees (including, without limitation, fees payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants, experts and consultants to Investor and its affiliates), whether incurred prior to, on or after the date hereof, in connection with the Investment Transactions, the refinancing of the Company's indebtedness and the consummation of all transactions contemplated by this Agreement (such fee, the "Expense Fee"); provided, however, that the Expense Fee shall not exceed $200,000. (b) If this Agreement shall have been terminated by Investor pursuant to Section 6.1(c)(i) or by the Company pursuant to Section 6.1(d)(i), and on or prior to one year from the date hereof any Superior Proposal shall have been consummated, then the Company shall promptly, but in no event later than five business days after the event giving rise to such payment, pay Investor a fee of $500,000 in cash (the "Termination Fee"), which amount shall be payable in same day funds. No amount payable pursuant to any of the other provisions of this Agreement shall reduce the amount of the Termination Fee payable pursuant to this Section 6.3(b). (c) In addition to the other provisions of this Section 6.3, in the event an Expense Fee or Termination Fee is or becomes payable, the Company agrees promptly, but in no event later than five business days following written notice thereof, together with related bills or receipts, to reimburse Investor for all reasonable out-of-pocket costs, fees and expenses, including, without limitation, the reasonable fees and disbursements of counsel and the expenses of litigation, incurred in connection with collecting such Expense Fee and Termination Fee as a result of any breach by the Company of its obligations under this Section 6.3.

Termination Fee and Expense Fee. In the event that the Merger Agreement is terminated: (ai) In addition to any other amounts which may be payable or become payable by (A) Parent pursuant to this Agreement, the Company shall, at the Closing and from time to time after the Closing, clause (v) or clause (vii) under "—Termination" above (but only in the case of the Company's breach or failure to perform any of its covenants or agreements contained in the Merger Agreement) or (B) the Company pursuant to clause (vi) or clause (xi) under "—Termination" above, then the Company shall pay to Parent or its designee, within two business days following the date of such termination of this Agreement other than by Parent pursuant to clause (A), or prior to or concurrently with such termination by the Company pursuant to Section 6.1(d)(ii) or clause (iiiB), promptly, but in no event later than five business days after such termination, reimburse Investor for all its out-of-pocket expenses and fees (including, without limitation, fees payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants, experts and consultants to Investor and its affiliates), whether incurred prior to, on or after the date hereof, in connection with the Investment Transactions, the refinancing of the Company's indebtedness and the consummation of all transactions contemplated by this Agreement (such fee, the "Expense Fee"); provided, however, that the Expense Fee shall not exceed $200,000. (b) If this Agreement shall have been terminated by Investor pursuant to Section 6.1(c)(i) or by the Company pursuant to Section 6.1(d)(i), and on or prior to one year from the date hereof any Superior Proposal shall have been consummated, then the Company shall promptly, but in no event later than five business days after the event giving rise to such payment, pay Investor a fee of $500,000 an amount in cash equal to $26,720,000 (the "Termination Fee"); or (ii) (A) by either Parent or the Company pursuant to clause (iii) under "—Termination" above, which amount (B) prior to the Offer Termination a Competing Proposal shall have been publicly disclosed and not withdrawn, and (C) within twelve months after the termination of the Merger Agreement, the Company shall have entered into a definitive agreement with respect to any Competing Proposal and such Competing Proposal is subsequently consummated, then the Company shall pay to Parent or its designee, within two business days after the consummation of such Competing Proposal, the Termination Fee; provided that for purposes of clause (ii) of this paragraph, the term "Competing Proposal" shall have the meaning assigned to such term, except that all percentages therein shall be payable changed to "50%". In addition, in same day funds. No amount payable the event that the Merger Agreement is terminated by Parent or the Company pursuant to any pursuant to clause (iii) under "—Termination" above, then the Company shall reimburse Parent for its reasonable documented out-of-pocket expenses incurred by Parent in connection with the negotiation, execution and performance of the other provisions Merger Agreement in an amount not to exceed $7,500,000 in the aggregate (the "Expense Fee"), by wire transfer of immediately available funds on the second business day following the date of such termination of the Merger Agreement; provided, that the existence of circumstance which would require the Termination Fee to become payable by the Company shall not relieve the Company of its obligations to pay the Expense Fee described in this Agreement shall reduce paragraph; provided, further, that in the event that the Termination Fee is paid to Parent, the amount of the Termination Fee payable shall be reduced by the amount of the Expense Fee required to be paid to Parent described in this paragraph. Each of the Company, Parent and Purchaser have acknowledged that (i) the agreements described in this Section 11—"The Merger Agreement; Other Agreements—Effect of Termination" and "—Termination Fee and Expense Fee" are an integral part of the Transactions and (ii) without these agreements, Parent, Purchaser and the Company would not enter into the Merger Agreement. In no event shall the Company be required to pay to Parent more than one Termination Fee pursuant to the agreements described in this Section 6.3(b)11—"The Merger Agreement; Other Agreements—Termination Fee and Expense Fee. (c) " In addition the event that Parent receives full payment of the Termination Fee pursuant to the other provisions of agreements described in this Section 6.3, in the event an Expense Fee or 11—"The Merger Agreement; Other Agreements—Termination Fee is or becomes and Expense Fee" under circumstances where a Termination Fee was payable, the Company agrees promptlyreceipt of the Termination Fee shall be the sole and exclusive monetary remedy for any and all losses or damages suffered or incurred by Parent, but in no event later than five business days following written notice thereofPurchaser, together with related bills any of their respective affiliates or receipts, to reimburse Investor for all reasonable out-of-pocket costs, fees and expenses, including, without limitation, the reasonable fees and disbursements of counsel and the expenses of litigation, incurred any other person in connection with collecting the Merger Agreement (and the termination thereof), the Merger and the Transactions (and the abandonment thereof) or any matter forming the basis for such Expense Fee and Termination Fee termination, other than any losses or damages incurred or suffered by Parent or Purchaser as a result of any breach by the Company's fraud. Availability of Specific Performance. Parent, Purchaser and the Company have agreed that irreparable damage would occur in the event that any of the provisions of the Merger Agreement were not performed, or were threatened not to be performed, in accordance with their specific terms or were otherwise breached. Accordingly, Parent, Purchaser and the Company have acknowledged and agreed that the parties to the Merger Agreement shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches or threatened breaches of the Merger Agreement and to enforce specifically the terms and provisions thereof, this being in addition to any other remedy to which they are entitled at law or in equity. Parent, Purchaser and the Company each agrees that, the seeking of remedies described in this Section 11—"The Merger Agreement; Other Agreements—Availability of Specific Performance" shall not in any way constitute a waiver by any party seeking such remedies of its obligations right to seek any other form of relief that may be available to it under the Merger Agreement in the event that the Merger Agreement has been terminated or in the event that the remedies described in this Section 6.311—"The Merger Agreement; Other Agreements—Availability of Specific Performance" are not available or otherwise are not granted.

Termination Fee and Expense Fee. (a) In addition to any other amounts which may Without limiting Section 7.10, if (i) there shall be payable or become payable pursuant to this Agreement, a material breach by the Company shall, at the Closing and from time to time after the Closing, or in the case of any termination of this Agreement other than termination by or (ii) the Company pursuant shall have delivered (or been obligated to Section 6.1(d)(iideliver) to the Investors a Notice of Superior Proposal or (iii), promptly, but in no event later than five business days after such termination, reimburse Investor for all its out-of-pocket expenses and fees (including, without limitation, fees payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees ) any third party acquires beneficial ownership of counsel, accountants, experts and consultants to Investor and its affiliates), whether incurred prior to, on 20% or after the date hereof, in connection with the Investment Transactions, the refinancing more of the Company's indebtedness and the consummation outstanding shares of all transactions contemplated by this Agreement (such fee, the "Expense Fee"); provided, however, that the Expense Fee shall not exceed $200,000. (b) If this Agreement shall have been terminated by Investor pursuant to Section 6.1(c)(i) or by the Company pursuant to Section 6.1(d)(i), and on or prior to one year from the date hereof any Superior Proposal shall have been consummatedCommon Stock, then the Company shall promptly, but in no event later than five business days after the first to occur of any such event giving rise described in clauses (i) through (iii) (or earlier if required pursuant to Section 6.1(e)) (the "Payment Date"), reimburse the Investors for all reasonable ------------ out-of-pocket expenses and fees payable by them or their affiliates (including, without limitation, fees and expenses of all counsel, printers, banks, financial advisors and other financial institutions, and their respective agents) (the "Expense Fee") related to the transactions contemplated by this Agreement, such payment----------- amount to be paid on the Payment Date in cash in immediately available funds by wire transfer to an account designated by the Investors and, further, if the event set forth in clause (ii) above shall occur prior to the Initial Closing, the Company shall also pay Investor the Investors a fee of $500,000 in cash 375,000 (the "Termination ----------- Fee")) on the Payment Date in cash in immediately available funds by wire --- transfer to an account designated by the Investors. (b) Without limiting Section 7.10, which if this Agreement is terminated by the Company for any reason other than a material breach by the Investors of their obligations hereunder, prior to the date of such termination the Company shall pay to the Investors the -32- Expense Fee, such amount to be paid in cash in immediately available funds by wire transfer to an account designated by the Investors (provided that the Expense Fee shall not be payable in same day funds. No amount payable pursuant to any of the other provisions of this Agreement shall reduce the amount of the Termination Fee payable pursuant to under this Section 6.3(b) if it has been paid pursuant to Section 6.3(a)). (c) In addition Nothing in this Section 6.3 or Section 7.10 is intended to require the Company to pay to the other provisions Investors as reimbursement for their expenses an amount which exceeds the amount of this Section 6.3, in the event an Expense Fee or Termination Fee is or becomes payable, the Company agrees promptly, but in no event later than five business days following written notice thereof, together with related bills or receipts, to reimburse Investor for all reasonable out-of-pocket costs, fees and such expenses, including, without limitation, the reasonable fees and disbursements of counsel and the expenses of litigation, incurred in connection with collecting such Expense Fee and Termination Fee as a result of any breach by the Company of its obligations under this Section 6.3.

Termination Fee and Expense Fee. (a) In addition to any other amounts which may be payable or become payable pursuant to this Agreement, the Company shall, at the Closing and from time to time after the Closing, or in the case of any termination of this Agreement other than termination by the Company pursuant to Section 6.1(d)(ii) or (iii), promptly, but in no event later than five business days after such termination, reimburse Investor for all its out-of-pocket expenses and fees (including, without limitation, fees payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees of counsel, accountants, experts and consultants to Investor and its affiliates), in an amount not to exceed $100,000 except as provided in Section 6.3(d), whether incurred prior to, on or after the date hereof, in connection with the Investment Transactions, the refinancing of the Company's indebtedness Transactions and the consummation of all transactions contemplated by this Agreement (such fee, the "Expense Fee"); provided, however, that the Expense Fee shall not exceed $200,000. (b) If this Agreement shall have been terminated by Investor pursuant to Section 6.1(c)(i) or by the Company pursuant to Section 6.1(d)(i), and on or prior to one year from the date hereof any Superior Proposal shall have been consummated, then the Company shall promptly, but in no event later than five business days after the event giving rise to such payment, pay Investor a fee of $500,000 600,000 in cash (the "Termination Fee"), which amount shall be payable in same day funds. No amount payable pursuant to any of the other provisions of this Agreement shall reduce the amount of the Termination Fee payable pursuant to this Section 6.3(b). (c) In addition to the other provisions of this Section 6.3, in the event an Expense Fee or Termination Fee is or becomes payable, the Company agrees promptly, but in no event later than five business days following written notice thereof, together with related bills or receipts, to reimburse Investor for all reasonable out-of-pocket costs, fees and expenses, including, without limitation, the reasonable fees and disbursements of counsel and the expenses of litigation, incurred in connection with collecting such Expense Fee and Termination Fee as a result of any breach by the Company of its obligations under this Section 6.3. (d) If expenses are incurred that would be included in the Expense Fee but for the $100,000 limitation set forth in Section 6.3(a), and such expenses are in any way related to any Superior Proposal received by the Company (including any tender offer made to stockholders of the Company), then the Expense Fee payable hereunder shall be increased by the amount of such expenses, but only to the extent that the proceeds received by the Company or its stockholders from the related transaction exceed the Purchase Price payable hereunder.

Termination Fee and Expense Fee. (a) In addition to any other amounts which may Without limiting Section 7.10, if (i) there shall be payable or become payable pursuant to this Agreement, a material breach by the Company shall, at the Closing and from time to time after the Closing, or in the case of any termination of this Agreement other than termination by or (ii) the Company pursuant shall have delivered (or been obligated to Section 6.1(d)(iideliver) to the Investors a Notice of Superior Proposal or (iii), promptly, but in no event later than five business days after such termination, reimburse Investor for all its out-of-pocket expenses and fees (including, without limitation, fees payable to all banks, investment banking firms and other financial institutions, and their respective agents and counsel, and all fees ) any third party acquires beneficial ownership of counsel, accountants, experts and consultants to Investor and its affiliates), whether incurred prior to, on 20% or after the date hereof, in connection with the Investment Transactions, the refinancing more of the Company's indebtedness and the consummation outstanding shares of all transactions contemplated by this Agreement (such fee, the "Expense Fee"); provided, however, that the Expense Fee shall not exceed $200,000. (b) If this Agreement shall have been terminated by Investor pursuant to Section 6.1(c)(i) or by the Company pursuant to Section 6.1(d)(i), and on or prior to one year from the date hereof any Superior Proposal shall have been consummatedCommon Stock, then the Company shall promptly, but in no event later than five business days after the first to occur of any such event giving rise described in clauses (i) through (iii) (or earlier if required pursuant to Section 6.1(e)) (the "Payment Date"), reimburse the Investors for all reasonable ------------ out-of-pocket expenses and fees payable by them or their affiliates (including, without limitation, fees and expenses of all counsel, printers, banks, financial advisors and other financial institutions, and their respective agents) (the "Expense Fee") related to the transactions contemplated by this Agreement, such payment----------- amount to be paid on the Payment Date in cash in immediately available funds by wire transfer to an account designated by the Investors and, further, if the event set forth in clause (ii) above shall occur prior to the Initial Closing, the Company shall also pay Investor the Investors a fee of $500,000 in cash 375,000 (the "Termination ----------- Fee")) on the Payment Date in cash in immediately available funds by wire --- transfer to an account designated by the Investors. (b) Without limiting Section 7.10, which if this Agreement is terminated by the Company for any reason other than a material breach by the Investors of their obligations hereunder, prior to the date of such termination the Company shall pay to the Investors the Expense Fee, such amount to be paid in cash in immediately available funds by wire transfer to an account designated by the Investors (provided that the Expense Fee shall not be payable in same day funds. No amount payable pursuant to any of the other provisions of this Agreement shall reduce the amount of the Termination Fee payable pursuant to under this Section 6.3(b) if it has been paid pursuant to Section 6.3(a)). (c) In addition Nothing in this Section 6.3 or Section 7.10 is intended to require the Company to pay to the other provisions Investors as reimbursement for their expenses an amount which exceeds the amount of this Section 6.3, in the event an Expense Fee or Termination Fee is or becomes payable, the Company agrees promptly, but in no event later than five business days following written notice thereof, together with related bills or receipts, to reimburse Investor for all reasonable out-of-pocket costs, fees and such expenses, including, without limitation, the reasonable fees and disbursements of counsel and the expenses of litigation, incurred in connection with collecting such Expense Fee and Termination Fee as a result of any breach by the Company of its obligations under this Section 6.3.