Common use of Termination Fee and Parent Expenses Clause in Contracts

Termination Fee and Parent Expenses. (i) In the event that this Agreement is validly terminated (A) by the Company or Parent pursuant to Section 7.01(b)(i) or (B) by Parent pursuant to Section 7.01(e) (on the basis of a breach of the Company’s representations and warranties), then the Company shall pay Parent an amount of cash equal to $1,500,000 as a reimbursement of Expenses incurred by Parent and Merger Sub (the “Termination Fee”)). Payment of the Termination Fee pursuant to this Section 7.02(b)(i) shall be made not later than two (2) Business Days after demand for payment, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.01(c) by the Company or Section 7.01(d) by Parent, then the Company shall pay to Parent an amount equal to the sum of (A) $3,200,000 and (B) the sum of Parent’s and Merger Sub’s Expenses (not to exceed $1,000,000 of such Expenses in the aggregate) (the sum of (A) and (B), the “Fiduciary Fee”), at or prior to the time of termination in the case of termination pursuant to Section 7.01(c) or as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination) in the case of a termination pursuant to Section 7.01(d), by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (iii) In the event that (A) prior to obtaining the Company Stockholder Merger Approval, an Acquisition Proposal has been publicly proposed by any person (other than Parent or Merger Sub or any of their respective affiliates) and not publicly withdrawn by the tenth calendar day prior to the Stockholders’ Meeting, (B) thereafter this Agreement is validly terminated by either Parent or the Company pursuant to Section 7.01(b)(i) or Section 7.01(b)(iii)) or by Parent pursuant to Section 7.01(e) and (C) any person (other than Parent or Merger Sub or any of their respective affiliates) shall enter into a definitive agreement to consummate, or consummates, an Acquisition Proposal within nine (9) months following the termination of this Agreement, then the Company shall pay to Parent the Fiduciary Fee, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company, on the date the Company enters into such definitive agreement or, if earlier, consummates an Acquisition Proposal, as applicable; provided, however, that the amount of the Termination Fee previously paid by the Company to Parent under Section 7.02(b)(i) shall be applied as a credit toward the payment by the Company of the amount of such Fiduciary Fee; provided further, however, that for the purpose of this Section 7.02(b)(iii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(g), except that references to “more than 15%” shall be deemed to be references to “more than 50%.” (iv) The Company acknowledges that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, that the damages resulting from the termination of this Agreement under circumstances where a Termination Fee or Fiduciary Fee are payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Sections 7.02(b)(i), (ii) and (iii) are reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages and not a penalty. The Company further acknowledges that without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Termination Fee and/or the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b), and, in order to obtain such payments Parent commences a suit which results in a judgment against the Company for the Termination Fee and/or the Fiduciary Fee, the Company shall pay to Parent its costs and expenses (including reasonable attorney’s fees) in connection with such suit. (v) Subject to Section 7.02(b)(iii) above, upon payment of the Termination Fee and/or the Fiduciary Fee by the Company in accordance with this Section 7.02(b), the Company and its Representatives shall have no further liability or obligation relating to, arising out of, or with respect to, this Agreement or the transactions contemplated hereby. (provided, that nothing herein shall release any party from any liability arising from fraud). Nothing herein shall limit Parent’s rights to xxx for damages (“Covenant Breach Damages”) resulting from the Company’s breach of a covenant hereunder) (provided, that the Company shall be entitled to introduce the payment of the Termination Fee by the Company to Parent as evidence in any proceeding to determine Covenant Breach Damages; provided further, that Parent shall not be entitled to any Covenant Breach Damages if the Company pays to Parent the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b)).

Termination Fee and Parent Expenses. (i) In the event that this Agreement is validly terminated (A) by the Company or Parent pursuant to Section 7.01(b)(i) or (B) by Parent pursuant to Section 7.01(e) (on the basis of a breach of the Company’s representations and warranties), then the Company shall pay Parent an amount of cash equal to $1,500,000 as a reimbursement of Expenses incurred by Parent and Merger Sub (the “Termination Fee”)). Payment of the Termination Fee pursuant to this Section 7.02(b)(i) shall be made not later than two (2) Business Days after demand for payment, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.01(c) by the Company or Section 7.01(d) by Parent, then the Company shall pay to Parent an amount equal to the sum of (A) $3,200,000 and (B) the sum of Parent’s and Merger Sub’s Expenses (not to exceed $1,000,000 of such Expenses in the aggregate) (the sum of (A) and (B), the “Fiduciary Fee”), at or prior to the time of termination in the case of termination pursuant to Section 7.01(c) or as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination) in the case of a termination pursuant to Section 7.01(d), by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (iii) In the event that (A) prior to obtaining the Company Stockholder Merger Approval, an Acquisition Proposal has been publicly proposed by any person (other than Parent or Merger Sub or any of their respective affiliates) and not publicly withdrawn by the tenth calendar day prior to the Stockholders’ Meeting, (B) thereafter this Agreement is validly terminated by either Parent or the Company pursuant to Section 7.01(b)(i) or Section 7.01(b)(iii)) or by Parent pursuant to Section 7.01(e) and (C) any person (other than Parent or Merger Sub or any of their respective affiliates) shall enter into a definitive agreement to consummate, or consummates, an Acquisition Proposal within nine (9) months following the termination of this Agreement, then the Company shall pay to Parent the Fiduciary Fee, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company, on the date the Company enters into such definitive agreement or, if earlier, consummates an Acquisition Proposal, as applicable; provided, however, that the amount of the Termination Fee previously paid by the Company to Parent under Section 7.02(b)(i) shall be applied as a credit toward the payment by the Company of the amount of such Fiduciary Fee; provided further, however, that for the purpose of this Section 7.02(b)(iii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(g), except that references to “more than 15%” shall be deemed to be references to “more than 50%.” (iv) The Company acknowledges that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, that the damages resulting from the termination of this Agreement under circumstances where a Termination Fee or Fiduciary Fee are payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Sections 7.02(b)(i), (ii) and (iii) are reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages and not a penalty. The Company further acknowledges that without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Termination Fee and/or the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b), and, in order to obtain such payments Parent commences a suit which results in a judgment against the Company for the Termination Fee and/or the Fiduciary Fee, the Company shall pay to Parent its costs and expenses (including reasonable attorney’s fees) in connection with such suit. (v) Subject to Section 7.02(b)(iii) above, upon payment of the Termination Fee and/or the Fiduciary Fee by the Company in accordance with this Section 7.02(b), the Company and its Representatives shall have no further liability or obligation relating to, arising out of, or with respect to, this Agreement or the transactions contemplated hereby. (provided, that nothing herein shall release any party from any liability arising from fraud). Nothing herein shall limit Parent’s rights to xxx sxx for damages (“Covenant Breach Damages”) resulting from the Company’s breach of a covenant hereunder) (provided, that the Company shall be entitled to introduce the payment of the Termination Fee by the Company to Parent as evidence in any proceeding to determine Covenant Breach Damages; provided further, that Parent shall not be entitled to any Covenant Breach Damages if the Company pays to Parent the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b)).

Termination Fee and Parent Expenses. (i) In the event that this Agreement is validly terminated (A) by the Company or Parent pursuant to Section 7.01(b)(i) or (B) by Parent pursuant to Section 7.01(e) (on the basis of a breach of the Company’s representations and warranties), then the Company shall pay Parent an amount of cash equal to $1,500,000 as a reimbursement of Expenses incurred by Parent and Merger Sub (the “Termination Fee”)). Payment of the Termination Fee pursuant to this Section 7.02(b)(i) shall be made not later than two (2) Business Days after demand for payment, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.01(c) by the Company or Section 7.01(d) by Parent, then the Company shall pay to Parent an amount equal to the sum of (A) $3,200,000 and (B) the sum of Parent’s and Merger Sub’s Expenses (not to exceed $1,000,000 of such Expenses in the aggregate) (the sum of (A) and (B), the “Fiduciary Fee”), at or prior to the time of termination in the case of termination pursuant to Section 7.01(c) or as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination) in the case of a termination pursuant to Section 7.01(d), by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (iii) In the event that (A) prior to obtaining the Company Stockholder Merger Approval, an Acquisition Proposal has been publicly proposed by any person (other than Parent or Merger Sub or any of their respective affiliates) and not publicly withdrawn by the tenth calendar day prior to the Stockholders’ Meeting, (B) thereafter this Agreement is validly terminated by either Parent or the Company pursuant to Section 7.01(b)(i) or Section 7.01(b)(iii)) or by Parent pursuant to Section 7.01(e) and (C) any person (other than Parent or Merger Sub or any of their respective affiliates) shall enter into a definitive agreement to consummate, or consummates, an Acquisition Proposal within nine (9) months following the termination of this Agreement, then the Company shall pay to Parent the Fiduciary Fee, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company, on the date the Company enters into such definitive agreement or, if earlier, consummates an Acquisition Proposal, as applicable; provided, however, that the amount of the Termination Fee previously paid by the Company to Parent under Section 7.02(b)(i) shall be applied as a credit toward the payment by the Company of the amount of such Fiduciary Fee; provided further, however, that for the purpose of this Section 7.02(b)(iii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(g), except that references to “more than 15%” shall be deemed to be references to “more than 50%.” (iv) The Company acknowledges that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, that the damages resulting from the termination of this Agreement under circumstances where a Termination Fee or Fiduciary Fee are payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Sections 7.02(b)(i), (ii) and (iii) are reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages and not a penalty. The Company further acknowledges that without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Termination Fee and/or the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b), and, in order to obtain such payments Parent commences a suit which results in a judgment against the Company for the Termination Fee and/or the Fiduciary Fee, the Company shall pay to Parent its costs and expenses (including reasonable attorney’s fees) in connection with such suit. (v) Subject to Section 7.02(b)(iii) above, upon payment of the Termination Fee and/or the Fiduciary Fee by the Company in accordance with this Section 7.02(b), the Company and its Representatives shall have no further liability or obligation relating to, arising out of, or with respect to, this Agreement or the transactions contemplated hereby. (provided, that nothing herein shall release any party from any liability arising from fraud). Nothing herein shall limit Parent’s rights to xxx for damages (“Covenant Breach Damages”) resulting from the Company’s breach of a covenant hereunder) (provided, that the Company shall be entitled to introduce the payment of the Termination Fee by the Company to Parent as evidence in any proceeding to determine Covenant Breach Damages; provided further, that Parent shall not be entitled to any Covenant Breach Damages if the Company pays to Parent the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b)).

Termination Fee and Parent Expenses. (i) In the event that this Agreement is validly terminated (A) by the Company or Parent pursuant to Section 7.01(b)(i) or (B) by Parent pursuant to Section 7.01(e) (on the basis of a breach of the Company’s representations and warranties), then the Company shall pay Parent an amount of cash equal to $1,500,000 as a reimbursement of Expenses incurred by Parent and Merger Sub (the “Termination Fee”)). Payment of the Termination Fee pursuant to this Section 7.02(b)(i) shall be made not later than two (2) Business Days after demand for payment, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.01(c) by the Company or Section 7.01(d) by Parent, then the Company shall pay to Parent an amount equal to the sum of (A) $3,200,000 and (B) the sum of Parent’s and Merger Sub’s Expenses (not to exceed $1,000,000 of such Expenses in the aggregate) (the sum of (A) and (B), the “Fiduciary Fee”), at or prior to the time of termination in the case of termination pursuant to Section 7.01(c) or as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination) in the case of a termination pursuant to Section 7.01(d), by wire transfer in immediately available funds to an account specified by Parent in writing to the Company. (iii) In the event that (A) prior to obtaining the Company Stockholder Merger Approval, an Acquisition Proposal has been publicly proposed by any person (other than Parent or Merger Sub or any of their respective affiliates) and not publicly withdrawn by the tenth calendar day prior to the Stockholders’ Meeting, (B) thereafter this Agreement is validly terminated by either Parent or the Company pursuant to Section 7.01(b)(i) or Section 7.01(b)(iii)) or by Parent pursuant to Section 7.01(e) and (C) any person (other than Parent or Merger Sub or any of their respective affiliates) shall enter into a definitive agreement to consummate, or consummates, an Acquisition Proposal within nine (9) months following the termination of this Agreement, then the Company shall pay to Parent the Fiduciary Fee, by wire transfer in immediately available funds to an account specified by Parent in writing to the Company, on the date the Company enters into such definitive agreement or, if earlier, consummates an Acquisition Proposal, as applicable; provided, however, that the amount of the Termination Fee previously paid by the Company to Parent under Section 7.02(b)(i) shall be applied as a credit toward the payment by the Company of the amount of such Fiduciary Fee; provided further, however, that for the purpose of this Section 7.02(b)(iii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(g), except that references to “more than 15%” shall be deemed to be references to “more than 50%.” (iv) The Company acknowledges that the agreements contained in this Section 7.02 are an integral part of the transactions contemplated by this Agreement, that the damages resulting from the termination of this Agreement under circumstances where a Termination Fee or Fiduciary Fee are payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Sections 7.02(b)(i), (ii) and (iii) are reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages and not a penalty. The Company further acknowledges that without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Termination Fee and/or the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b), and, in order to obtain such payments Parent commences a suit which results in a judgment against the Company for the Termination Fee and/or the Fiduciary Fee, the Company shall pay to Parent its costs and expenses (including reasonable attorney’s fees) in connection with such suit. (v) Subject to Section 7.02(b)(iii) above, upon payment of the Termination Fee and/or the Fiduciary Fee by the Company in accordance with this Section 7.02(b), the Company and its Representatives shall have no further liability or obligation relating to, arising out of, or with respect to, this Agreement or the transactions contemplated hereby. (provided, that nothing herein shall release any party from any liability arising from fraud). Nothing herein shall limit Parent’s rights to xxx sxx for damages (“Covenant Breach Damages”) resulting from the Company’s breach of a covenant hereunder) (provided, that the Company shall be entitled to introduce the payment of the Termination Fee by the Company to Parent as evidence in any proceeding to determine Covenant Breach Damages; provided further, that Parent shall not be entitled to any Covenant Breach Damages if the Company pays to Parent the Fiduciary Fee when due in accordance with the applicable requirements of this Section 7.02(b)).