Common use of Termination Fee; Expenses Clause in Contracts

Termination Fee; Expenses. (a) In the event that (i) this Agreement is terminated pursuant to Section 9.01(c)(iv) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer shall have been made to the Company and shall have become known publicly, (y) this Agreement shall have been terminated pursuant to Section 9.01(b), 9.01(c)(i) or 9.01(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any of Sections 8.01(b), (c) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilled), or pursuant to Section 9.01(c)(ii) or 9.01(d)(ii) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company shall pay to Buyer a fee equal to $2,250,000, in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day funds to an account designated by Buyer (x) in the case of Section 9.03(a)(i), upon termination of this Agreement, and (y) in the case of Section 9.03(a)(ii), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to any paragraph of Section 9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (ii) The parties agree that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by the Agreement and are an inducement to Buyer to enter into this Agreement and not a penalty. (iii) If the Company fails to pay promptly to Buyer any amount due under this Section 9.03, the Company shall pay the costs and expenses of Buyer (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime or base rate of Citibank, N.A., from the date such fee was required to be paid.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated, except that Parent and Company each shall pay one-half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement and any fees required to be paid under the HSR Act. (b) In the event that (i) Parent shall terminate this Agreement is terminated pursuant to Section 9.01(c)(iv9.01(d) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer Parent shall have been made to the Company and shall have become known publicly, (y) terminate this Agreement shall have been terminated due to a Terminating Company Breach pursuant to Section 9.01(b9.01(g), 9.01(c)(i) or 9.01(d)(i) (in each casebut only if such breach was intentional, other than by reason of the failure of the conditions set forth in any of Sections 8.01(b), (c) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilled), or pursuant to Section 9.01(c)(ii) or 9.01(d)(ii) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the then Company shall pay to Buyer Parent (the "Company Termination Fee") a fee sum equal to all of Parent's Expenses and an additional amount equal to $2,250,0004.5 million. Notwithstanding the foregoing, in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount no fee shall be paid by wire transfer of same day funds to an account designated by Buyer (x) in the case of Section 9.03(a)(i), upon termination of this Agreement, and (y) in the case of Section 9.03(a)(ii), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to any paragraph of Section 9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 9.05(b) if Parent shall not constitute an election be in material breach of remedies or its obligations hereunder. Any Company Termination Fee shall be paid in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise same day funds within three (3) business days of the right under this Section 9.03 shall constitute an election date of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwisetermination. (c) In the event that (i) Company shall terminate this Agreement pursuant to Section 9.01(e) or (ii) The parties Company shall terminate this Agreement due to a Terminating Parent Breach pursuant to Section 9.01(h), but only if such breach was intentional, then Parent shall pay to Company (the "Parent Termination Fee") a sum equal to all of Company's Expenses and an additional amount equal to $4.5 million. Notwithstanding the foregoing, no fee shall be paid pursuant to this Section 9.05(c) if Company shall be in material breach of its obligations hereunder. Any Parent Termination Fee shall be paid in same day funds within three (3) business days of the date of termination. (d) Parent and Company agree that the agreements contained in this Section 9.03 Sections 9.05(b) and 9.05(c) above are an integral part of the transactions transaction contemplated by the this Agreement and are an inducement to Buyer to enter into this Agreement constituted liquidated damages and not a penalty. (iii) . If the Company fails to pay promptly to Buyer Parent any amount fee due under this Section 9.039.05(b), the Company shall pay the costs cash and expenses of Buyer (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or of other legal action, taken to collect payment. Similarly, together if Parent fails to pay to Company any fee due under Section 9.05(c), Parent shall pay the cash and expenses (including legal fees and expenses) in connection with interest on any action, including the amount filing of any unpaid fee at the publicly announced prime or base rate lawsuit of Citibankother legal action, N.A., from the date such fee was required taken to be paidcollect payment.

Termination Fee; Expenses. (a) In the event that (i) If UBSH terminates this Agreement is terminated pursuant to Section 9.01(c)(iv7.1(g), then FMB shall pay UBSH the sum of $5,000,000 (the “Termination Fee”), by wire transfer, on the business day following such termination. (b) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer shall have been made to the Company and shall have become known publicly, (y) If FMB terminates this Agreement shall have been terminated pursuant to Section 9.01(b7.1(h), 9.01(c)(ithen UBSH shall pay FMB the Termination Fee, by wire transfer, on the business day following such termination. (c) or 9.01(d)(i) (in each caseIf any Affiliate Agreement signed by FMB Affiliates is materially breached and the stockholders of FMB fail to approve this Agreement and the Merger, other than then FMB shall pay UBSH the Termination Fee, by reason of wire transfer, on the business day following the failure of the conditions set forth in any of FMB stockholders to approve this Agreement and the Merger; it being agreed that UBSH shall not be entitled to receive a Termination Fee under both Section 7.4(a) and (c). (d) If either party fails to pay all amounts due the other party under Sections 8.01(b7.4(a), (cb) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilledc), or pursuant to Section 9.01(c)(ii) or 9.01(d)(ii) and (z) within 12 months after termination as applicable, on the Company shall have entered into an agreement with respect todates specified, or consummated, any Company Third Party Acquisition (defined below), then, the Company then such defaulting party shall pay to Buyer a fee equal to $2,250,000, in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day funds to an account designated by Buyer (x) in the case of Section 9.03(a)(i), upon termination of this Agreement, and (y) in the case of Section 9.03(a)(ii), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to any paragraph of Section 9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (ii) The parties agree that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by the Agreement and are an inducement to Buyer to enter into this Agreement and not a penalty. (iii) If the Company fails to pay promptly to Buyer any amount due under this Section 9.03, the Company shall pay the costs and expenses of Buyer (including legal fees and expenses) incurred by the other party in connection with any action, including the filing of any lawsuit action or other legal action, proceeding taken by it to collect paymentsuch unpaid amounts. (e) If this Agreement is terminated by either party under Sections 7.1(c) or (d), together then the non-terminating party shall reimburse the terminating party for all reasonable out-of-pocket expenses incurred by it in connection with interest on the amount transactions contemplated by this Agreement and the enforcement of its rights hereunder. (f) Except as provided in Sections 7.4(a), (b), (c), (d) and (e), all fees and expenses incurred by the parties hereto shall be borne solely by the party that has incurred such fees and expenses. (g) The termination fees and expenses set forth in this Section 7.4 shall be the sole and exclusive remedies available to any unpaid fee at the publicly announced prime party against any other party for any claims under or base rate of Citibank, N.A., from the date such fee was required to be paidbased upon this Agreement.

Termination Fee; Expenses. (a) In the event that (i) If this Agreement is terminated by the Buyer or the Sellers’ Representative pursuant to Section 9.01(c)(iv) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer shall have been made to the Company and shall have become known publicly, (y) this Agreement shall have been terminated pursuant to Section 9.01(b9.1(f), 9.01(c)(i) or 9.01(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any of Sections 8.01(b), (c) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilled), or pursuant to Section 9.01(c)(ii) or 9.01(d)(ii) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company Buyer shall pay to Buyer a fee equal to the Sellers’ Representative $2,250,000, in cash 11,250,000 (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by “Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisorsTermination Fee”) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day immediately available funds to an a bank account designated in writing by the Sellers’ Representative on the date this Agreement is terminated if terminated by the Buyer (x) and such termination, if by the Buyer, shall not be effective until the Buyer Termination Fee is paid in the case of Section 9.03(a)(ifull), upon termination of or within five (5) Business Days after the date this Agreement, and Agreement is terminated if terminated by the Sellers’ Representative. (yb) in If this Agreement is terminated by the case of Buyer or the Sellers’ Representative pursuant to Section 9.03(a)(ii9.1(i), upon the earlier Buyer shall pay to the Sellers’ Representative $3,500,000 (the “Sellers’ Expenses”), which the Buyer and the Sellers hereby agree is the reasonable amount of such entry into an agreement the expenses incurred by the Sellers in connection with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination the negotiation of this Agreement and the transactions contemplated hereby, by wire transfer of immediately available funds to a bank account designated in writing by the Company pursuant to any paragraph of Section 9.01 that requires payment of Sellers’ Representative on the Termination Fee date on which this Agreement is terminated if terminated by the Buyer (and Expense Reimbursement Amount upon such termination pursuant thereto, that such payment has been made. In no event by the Buyer shall more than one Termination Fee not be payable under effective until the Sellers’ Expenses are paid in full) or within five (5) Business Days after the date on which this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third party acquires at least 40% of Agreement is terminated if terminated by the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transactionSellers’ Representative. (ic) The existence of Buyer and the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (ii) The parties agree Sellers acknowledge that the agreements contained in this Section 9.03 9.2(a) and 9.2(b) are an integral part of the transactions contemplated by hereby, and that without these agreements the Agreement and are an inducement to Buyer to Sellers would not enter into this Agreement and not a penalty. (iii) If Agreement. Accordingly, if the Company Buyer fails to timely pay promptly to Buyer any amount due under pursuant to Section 9.2(a) or 9.2(b), and, in order to obtain the payment, the Sellers or the Company commence a suit which results in a final, non-appealable judgment against the Buyer for the payment set forth in this Section 9.039.2(a) or 9.2(b), the Company Buyer shall pay the Sellers’ reasonable and documented costs and expenses of Buyer (including legal fees reasonable and expensesdocumented attorneys’ fees) in connection with such suit. (d) Except in the event of willful or intentional breach of this Agreement by the Buyer or actual, knowing and intentional fraud by the Buyer, (i) the Sellers’ and the Sellers’ Representative’s rights to receive (A) the Buyer Termination Fee pursuant to Section 9.2(a) and (B) the Sellers’ Expenses pursuant to Section 9.2(b) shall be the sole and exclusive remedy of the Sellers and the Sellers’ Representative against the Buyer and the Debt Financing Sources for any actionLosses suffered as a result of the termination of this Agreement and the resulting failure of the transactions contemplated hereby to be consummated (whether based in contract, tort or otherwise), including without limitation any claim resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement, and (ii) upon payment of such amount(s), where applicable, the filing Buyer and the Debt Financing Sources shall not have any further Liability relating to or arising out of this Agreement or the transactions contemplated hereby (except that the Buyer shall also be obligated with respect to Section 9.2(c) and Section 9.3 and each party may enforce the Confidentiality Agreement). Except as provided in Section 9.3 and in the event of willful or intentional breach of this Agreement by a Seller or actual, knowing and intentional fraud by a Seller, the Sellers’ Representative or the Company, the Buyer shall have no recourse against any lawsuit of the Sellers, the Sellers’ Representative or other legal action, taken to collect payment, together with interest on the amount Company for any Losses suffered as a result of any unpaid fee at the publicly announced prime or base rate termination of Citibank, N.A., from this Agreement and the date such fee was required resulting failure of the transactions contemplated hereby to be paidconsummated (whether based in contract, tort or otherwise), including without limitation any claim resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement (except that the Sellers, the Sellers’ Representative and the Company shall also be obligated with respect to Section 9.3, and each party may, enforce the Confidentiality Agreement).

Termination Fee; Expenses. (a) In the event that (i) If this Merger Agreement is terminated at such time that this Merger Agreement is terminable pursuant to one (but not both) of (A) Section 9.01(c)(iv11.1(e)(i) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer shall have been made to the Company and shall have become known publicly, (y) this Agreement shall have been terminated pursuant to Section 9.01(b), 9.01(c)(ior (B) or 9.01(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any of Sections 8.01(b), (cSection 11.1(f)(i) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilledii), or pursuant to Section 9.01(c)(iithen the breaching party shall promptly (but no later than five (5) or 9.01(d)(iibusiness days after receipt of notice from the non-breaching party) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company shall pay to Buyer a fee equal to $2,250,000, the non-breaching party in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, amount equal to all documented out-of-pocket expenses and fees incurred by Buyer the non-breaching party (including including, without limitation, fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) advisors arising out of, in connection with or related to this Agreement, the Merger merger or the transactions contemplated by this Merger Agreement. The Termination Fee ) not in excess of $150,000; provided, however, that, if this Merger Agreement is terminated by a party as a result of a willful breach by the other party, the non-breaching party may pursue any remedies available to it at law or in equity and Expense Reimbursement Amount shall, in addition to its documented out-of-pocket expenses and fees (which shall be paid by wire transfer of same day funds as specified above and shall not be limited to an account designated by Buyer (x) in the case of Section 9.03(a)(i$150,000), upon termination of this Agreement, and (y) in the case of Section 9.03(a)(ii), upon the earlier of be entitled to recover such entry into an agreement with respect to a Company Third Party Acquisition or additional amounts as such consummation of a Company Third Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to any paragraph of Section 9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third non-breaching party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, to receive at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (ii) The parties agree that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by the Agreement and are an inducement to Buyer to enter into this Agreement and not a penalty. (iiib) If the Company one party fails to promptly pay promptly to Buyer any amount other party any fee due under this Section 9.03hereunder, the Company defaulting party shall pay the costs and expenses of Buyer (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime or base rate of Citibank, N.A., at published in The Wall Street Journal (Midwest Edition) from the date such fee was required to be paid. (c) Notwithstanding anything herein to the contrary, the aggregate amount payable by LBB and its affiliates to SFSC pursuant to Section 11.3(a) shall not exceed $500,000, and the aggregate amount payable by SFSC and its affiliates to LBB pursuant to Section 11.3(a) shall not exceed $500,000.

Termination Fee; Expenses. (a) Except as set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the party incurring such expenses, whether or not the Merger is consummated. In the event that (i) this Agreement is terminated by Parent pursuant to Section 9.01(c)(iv) or 9.01(e8.1(f); or (ii) (x) a Company Third Party Acquisition Offer , Parent shall have been made pay in cash to the Company and shall have become known publicly, (y) an amount equal to the Termination Fee by wire transfer of immediately available funds to an account to be designated by the Company. In the event that this Agreement shall have been is terminated pursuant to Section 9.01(b), 9.01(c)(i) or 9.01(d)(i) (in each case, other than by reason as a result of the failure of the conditions set forth in any of Sections 8.01(b), (c) or (d) to be fulfilled or the failure of the conditions condition set forth in Section 8.03 to be fulfilled), or 6.15 (including a termination by either party pursuant to Section 9.01(c)(ii8.1(b) at a time when all the other conditions to closing set forth in Articles 6 and 7 have been satisfied (or 9.01(d)(ii) are capable of being satisfied and (z) within 12 months after termination would have been satisfied at the Closing were the Closing to occur on the date of such termination)), Parent shall pay in cash to the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company shall pay to Buyer a fee amount equal to $2,250,000, in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, equal to all documented Company’s actual out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related the Merger, in an amount not to this Agreementexceed the Termination Fee, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day immediately available funds to an account to be designated by Buyer (x) in the case of Section 9.03(a)(i), upon termination of this Agreement, and (y) in Company. In the case of Section 9.03(a)(ii), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination of event that this Agreement is terminated by the Company pursuant to any paragraph of Section 9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z8.1(g), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (ii) The parties agree that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by the Agreement and are an inducement to Buyer to enter into this Agreement and not a penalty. (iii) If the Company fails to pay promptly to Buyer any amount due under this Section 9.03, the Company shall pay in cash to Parent an amount equal to the Termination Fee by wire transfer of immediately available funds to an account to be designated by the Parent. If a party fails to pay when due any amount payable by such party under this Section 8.3, then: (i) such party shall reimburse the other party for all costs and expenses of Buyer (including legal fees and expensesdisbursements of counsel) incurred in connection with any action, including the filing collection of any lawsuit or such overdue amount and the enforcement by the other legal action, taken party of its rights under this Section 8.3; and (ii) such party shall pay to collect payment, together with the other party interest on such overdue amount (for the amount period commencing as of any unpaid fee at the publicly announced prime or base rate of Citibank, N.A., from the date such fee overdue amount was originally required to be paidpaid through the date such overdue amount is actually paid to the other party in full) at a rate per annum equal to the lower of: (i) 18% per annum; or (ii) the maximum rate permitted by applicable Legal Requirements.

Termination Fee; Expenses. (a) In the event that (i) If this Agreement is terminated at such time that this Agreement is terminable pursuant to one (but not both) of (A) Section 9.01(c)(iv7.1(h)(x) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer shall have been made to the Company and shall have become known publicly, (y) this Agreement shall have been terminated pursuant to or (B) Section 9.01(b), 9.01(c)(i) or 9.01(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any of Sections 8.01(b), (c7.1(i)(x) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilledy), or pursuant to Section 9.01(c)(iithen the ------------------------ ------------------------ non-terminating party shall promptly (but no later than five (5) or 9.01(d)(iibusiness days after receipt of notice from the terminating party) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company shall pay to Buyer a fee equal to $2,250,000, the terminating party in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, amount equal to all documented out-of-pocket expenses and fees incurred by Buyer the terminating party (including including, without limitation, fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) advisors arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee ) not in excess of $250,000; provided, however, that, if this Agreement is -------- ------- terminated by a party as a result of a willful breach by the other party of any representation, warranty, agreement or covenant contained in this Agreement, the terminating party may pursue any remedies available to it at law or in equity and Expense Reimbursement Amount shall, in addition to its documented out-of- pocket expenses and fees (which shall be paid by wire transfer of same day funds as specified above and shall not be limited to an account designated by Buyer (x) in the case of Section 9.03(a)(i$250,000), upon termination of this Agreement, and (y) in the case of Section 9.03(a)(ii), upon the earlier of be entitled to recover such entry into an agreement with respect to a Company Third Party Acquisition or additional amounts as such consummation of a Company Third Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to any paragraph of Section 9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third terminating party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, to receive at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (iib) The parties agree that the agreements contained in this Section 9.03 7.3 are an integral part of the transactions contemplated ----------- by the this Agreement and are an inducement to Buyer to enter into this Agreement constitute liquidated damages and not a penalty. (iii) . If the Company one party fails to promptly pay promptly to Buyer any amount other party any fee due under this Section 9.03hereunder, the Company defaulting party shall pay the costs and expenses of Buyer (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime or base rate of Citibank, N.A., as published in The Wall Street --------------- Journal (Midwest Edition) from the date such fee was required to be ------------------------- paid.

Termination Fee; Expenses. (a) In the event Termination Fee upon Breach or Withdrawal of Approval. If this ----------------------------------------------------- Agreement is terminated at such time that (i) this Agreement is terminated terminable pursuant to one (but not both) of (x) Section 9.01(c)(iv9.1(g)(i) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer shall have been made to the Company and shall have become known publicly, or (y) this Agreement shall have been terminated pursuant to Section 9.01(b), 9.01(c)(i) or 9.01(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any of Sections 8.01(b), (c9.1(h)(i) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilled), or pursuant to Section 9.01(c)(ii) or 9.01(d)(ii) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined belowii), then, : (i) the Company breaching party shall promptly (but not later than five business days after receipt of notice from the non-breaching party) pay to Buyer a fee equal to $2,250,000, the non-breaching party in cash (the "TERMINATION FEE"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNT"), not to exceed $750,000, amount equal to all documented out-of-pocket expenses and fees incurred by Buyer the non-breaching party (including including, without limitation, fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) advisors arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee ) not in excess of $10 million; provided, however, that, if this Agreement is terminated by a party as a result of a willful breach by the other party, the non-breaching party may pursue any remedies available to it at law or in equity and Expense Reimbursement Amount shall, in addition to its out-of-pocket expenses (which shall be paid by wire transfer of same day funds as specified above and shall not be limited to an account designated by Buyer $10 million), be entitled to recover such additional amounts as such non-breaching party may be entitled to receive at law or in equity; and (ii) if (x) in at the case time of Section 9.03(a)(i), upon termination the breaching party's willful breach of this Agreement, there shall have been a third-party tender offer for shares of, or a third party offer or proposal with respect to a Business Combination involving, such party or any of its affiliates which at the time of such termination shall not have been rejected by such party and its board of directors and withdrawn by the third party, and (y) in within two and one- half years of any termination by the case non-breaching party, the breaching party or an affiliate thereof becomes a subsidiary of Section 9.03(a)(iisuch offeror or a subsidiary of an affiliate of such offeror or accepts a written offer to consummate or consummates a Business Combination with such offeror or an affiliate thereof, then such breaching party (jointly and severally with its affiliates), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation signing of a Company Third Party Acquisition. It shall be definitive agreement relating to such a Business Combination, or, if no such agreement is signed then at the closing (and as a condition to termination the closing) of this Agreement by such breaching party becoming such a subsidiary or of such Business Combination, will pay to the Company pursuant non-breaching party an additional fee equal to any paragraph of Section 9.01 $50 million in cash; provided that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In in no event shall more than one Termination Fee the additional termination fee provided for in Section 9.3(b) be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITION" means (i) a transaction pursuant if the additional fee referred to any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; PROVIDED, HOWEVER, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (ii) The parties agree that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by the Agreement and are an inducement to Buyer to enter into this Agreement and not a penalty. (iii9.3(a)(ii) If the Company fails to pay promptly to Buyer any amount due under this Section 9.03, the Company shall pay the costs and expenses of Buyer (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime or base rate of Citibank, N.A., from the date such fee was required to be has been paid.

Termination Fee; Expenses. (a) In the event that (i) this Agreement is terminated pursuant to Section 9.01(c)(iv) or 9.01(e); or (ii) (x) a Company Third Party Acquisition Offer shall have been made to the Company and shall have become known publicly, (y) this Agreement shall have been terminated pursuant to Section 9.01(b), 9.01(c)(i) or 9.01(d)(i) (in each case, other than by reason of the failure of the conditions set forth in any of Sections 8.01(b), (c) or (d) to be fulfilled or the failure of the conditions set forth in Section 8.03 to be fulfilled), or pursuant to Section 9.01(c)(ii) or 9.01(d)(ii) and (z) within 12 months after termination the Company shall have entered into an agreement with respect to, or consummated, any Company Third Party Acquisition (defined below), then, the Company shall pay to Buyer a fee equal to $2,250,000, in cash (the "TERMINATION FEETermination Fee"), plus an amount, in cash (the "EXPENSE REIMBURSEMENT AMOUNTExpense Reimbursement Amount"), not to exceed $750,000, equal to all documented out-of-pocket expenses and fees incurred by Buyer (including fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors) arising out of, in connection with or related to this Agreement, the Merger or the transactions contemplated by this Agreement. The Termination Fee and Expense Reimbursement Amount shall be paid by wire transfer of same day funds to an account designated by Buyer (x) in the case of Section 9.03(a)(i), upon termination of this Agreement, and (y) in the case of Section 9.03(a)(ii), upon the earlier of such entry into an agreement with respect to a Company Third Party Acquisition or such consummation of a Company Third Party Acquisition. It shall be a condition to termination of this Agreement by the Company pursuant to any paragraph of Section 9.01 that requires payment of the Termination Fee and Expense Reimbursement Amount upon termination pursuant thereto, that such payment has been made. In no event shall more than one Termination Fee be payable under this Article IX. As used in Section 9.03 (a)(ii)(z), a "COMPANY THIRD PARTY ACQUISITIONCompany Third Party Acquisition" means (i) a transaction pursuant to any Company Third Party Acquisition Offer in which any third party acquires at least 40% of the outstanding shares of Company Common Stock by tender offer, exchange offer or otherwise, (ii) a merger or other business combination (other than with Buyer or Buyer Subsidiary) in which, immediately after giving effect thereto, shareholders other than the shareholders of the Company immediately prior thereto own at least 40% of the entity surviving such merger or business combination, or (iii) any transaction pursuant to which any third party acquires assets of the Company having a fair market value equal to at least 40% of all of the assets of the Company and its Subsidiaries, taken as a whole, immediately prior to such transaction. (i) The existence of the right to receive payment pursuant to this Section 9.03 shall not constitute an election of remedies or in any way limit or impair a party's right to pursue any other remedy against the other party to which it may be entitled under this Agreement, at law or in equity, or otherwise; PROVIDEDprovided, HOWEVERhowever, the successful exercise of the right under this Section 9.03 shall constitute an election of remedies and shall preclude that party from any other remedy against the other party to which it may otherwise be entitled under this Agreement, at law or in equity or otherwise. (ii) The parties agree that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by the Agreement and are an inducement to Buyer to enter into this Agreement and not a penalty. (iii) If the Company fails to pay promptly to Buyer any amount due under this Section 9.03, the Company shall pay the costs and expenses of Buyer (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime or base rate of Citibank, N.A., from the date such fee was required to be paid.. ARTICLE X