Common use of Termination Fee; Expenses Clause in Contracts

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Arrangement shall be paid by the party incurring such Expenses, whether or not the Arrangement is completed, 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 Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Proxy Statement, any fees required to be paid under the HSR Act and the Competition Act (Canada), if any and any fees and expenses payable in connection with obtaining the Interim Order and the Final Order. (b) Without limiting any other remedies available to Parent, in the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), (ii) this Agreement shall be terminated pursuant to (x) Section 9.01(b) or (y) Section 9.01(e) as a result of the failure to obtain the requisite approval of Company's shareholders and, in the case of either (x) or (y), at the time of such termination or failure to so approve this Agreement, there shall exist or have been proposed a Company Competing Transaction with respect to Company, or (iii) Parent shall terminate this Agreement pursuant to Section 9.01(f) as a result of either a breach of any covenant contained in this Agreement or an intentional breach of any representation or warranty contained in this Agreement and, at the time of such termination, either (A) there shall exist or have been proposed a Company Competing Transaction with respect to Company or (B) within one year after such termination, Company shall enter into a definitive agreement with respect to any Company Competing Transaction or any Company Competing Transaction involving Company shall be consummated, then, in the case of (i) or (ii), promptly after such termination or failure to obtain shareholder approval, or, in the case of (iii), immediately before the execution and delivery of such agreement or such consummation, Company shall pay to Parent an amount in cash equal to $14,000,000 plus, in the case of (i), (ii) or (iii) above (regardless of whether the conditions contained in (A) or (B) shall have been satisfied), an amount in cash equal to Parent's Expenses up to $1,000,000 in the aggregate, payable at the time of such termination or failure to obtain shareholder approval. (c) Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the transaction contemplated by this Agreement and constitute liquidated damages and not a penalty. If Company fails to pay to Parent any fee due under Section 9.05(b), Company shall pay the cash and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit of other legal action, taken to collect payment.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Arrangement Merger shall be paid by the party incurring such Expenses, whether or not the Arrangement Merger is completedconsummated, except that Parent and Company each shall pay one-half of all Expenses (other than attorneys' and accountants' fees and expenses) incurred solely for printing, filing and mailing the Registration Statement and the Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Proxy Statement, Statement and any fees required to be paid under the HSR Act and the Competition Act (Canada), if any and any fees and expenses payable in connection with obtaining the Interim Order and the Final OrderAct. (b) Without limiting any other remedies available to Parent, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), (ii) Parent shall terminate this Agreement due to a Terminating Company Breach of any covenant or agreement contained in this Agreement pursuant to Section 9.01(f), (iii) Company shall terminate this Agreement pursuant to Section 9.01(h) or (iv) this Agreement shall be terminated pursuant to (x) Section 9.01(b) or (y) pursuant to Section 9.01(e) as a result of the failure to obtain the requisite approval of Company's the Company shareholders and, in the case of either and (xA) at or (y), at the time of prior to such termination or failure to so approve this Agreementtermination, there shall exist or have been publicly proposed a Company Competing Transaction with respect to Company, or (iii) Parent shall terminate this Agreement pursuant to Section 9.01(f) as a result of either a breach of any covenant contained in this Agreement or an intentional breach of any representation or warranty contained in this Agreement and, at the time of such termination, either (A) there shall exist or have been proposed a Company Competing Transaction with respect to Company or and (B) within one year 12 months after such termination, Company shall enter into a definitive agreement with respect to any Company Competing Transaction or any Company Competing Transaction involving Company shall be consummated, then, in the case of (i), (ii) or (iiiii), promptly after such termination termination, or failure to obtain shareholder approval, or, in the case of (iiiiv), immediately before the execution and delivery of such agreement or such consummation, Company shall pay to Parent (the "Termination Fee") a sum equal to all of Parent's Expenses and an additional amount in cash equal to $14,000,000 plus, in 8,600,000. In the case event of (itermination of this Agreement by Company pursuant to Section 9.01(g), (ii) or (iii) above (regardless of whether the conditions contained in (A) or (B) Parent shall have been satisfied), pay to Company an amount in cash equal to Parentall of Company's Expenses up to $1,000,000 in the aggregate, payable at the time of such termination or failure to obtain shareholder approvalExpenses. (c) Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the transaction contemplated by this Agreement and constitute liquidated damages and not a penalty. If Accordingly, if Company fails to pay to Parent any fee amounts due under Section 9.05(b), Company shall pay the cash and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit of other legal action, taken to collect payment, together with interest on such amounts at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Arrangement Merger shall be paid by the party incurring such Expenses, whether or not the Arrangement Merger is completedconsummated, except that Parent and Company each shall pay one-half of all Expenses (other than attorney's and accountant's fees and expenses) incurred solely for printing, filing (with the SEC) 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, any fees required to be paid under the HSR Act and the Competition Act (Canada), if any and any fees and expenses payable in connection with obtaining the Interim Order and the Final Order. (b) Without limiting any other remedies available to Parent, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d) (other than under the circumstances described in Section 9.05(d)), or (ii) this Agreement shall be terminated pursuant to (x) pursuant to Section 9.01(b) or (y) pursuant to Section 9.01(e9.01(e)(i) as a result of the failure to obtain the requisite approval of Company's shareholders the Company stockholders and, in the case of either (x) or (y), (A) at the time of or prior to such termination or failure to so approve this Agreementtermination, there shall exist or have been proposed a Company Competing Transaction with respect to Company, or (iii) Parent shall terminate this Agreement pursuant to Section 9.01(f) as a result of either a breach of any covenant contained in this Agreement or an intentional breach of any representation or warranty contained in this Agreement and, at the time of such termination, either (A) there shall exist or have been proposed a Company Competing Transaction with respect to Company or and (B) within one year 12 months after such termination, Company shall enter into a definitive agreement with respect to any Company Competing Transaction or any Company Competing Transaction involving Company shall be consummated, then, in the case of (i) or (ii), promptly after such termination termination, or failure to obtain shareholder approval, or, in the case of (iiiii), immediately before concurrently with the execution and delivery consummation of such agreement or such consummationCompeting Transaction, Company shall (subject to Section 9.05(e)) pay to Parent an amount in cash equal to $14,000,000 plus, in 30 million (the case of "Termination Fee") plus Parent's Expenses. (ic) In the event that Parent shall terminate this Agreement pursuant to Section 9.01(f), then Company shall promptly reimburse Parent for Parent's Expenses, and if, within twelve months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Company shall be consummated concurrently with the consummation of such Competing Transaction, then Company shall (iisubject to Section 9.05(e)) or (iii) above (regardless of whether the conditions contained in (A) or (B) shall have been satisfied), pay to Parent an amount in cash equal to Parent's Expenses up to $1,000,000 in the aggregate, payable at the time of such termination or failure to obtain shareholder approvalTermination Fee. (d) In the event that Parent shall terminate this Agreement pursuant to Section 9.01(d)(i) and (A) prior to such termination there shall have not existed or have been proposed a Competing Transaction with respect to Company and (B) Xxxxxxxxx Xxxxxxxx has withdrawn the BRS Fairness Opinion, then within 30 days after such termination, Company shall pay to Parent an amount equal to the Termination Fee plus Parent's Expenses; provided, however, that no more than $5,000,000 of the Termination Fee need be paid in cash, any non-cash portion of the Termination Fee to be paid by means of the issue by Company to Parent of that number of shares of Company Common Stock (the "Termination Shares") equal to the quotient of the amount of such non-cash portion and $93.25. Parent and Company agree that the provisions of Section 8 of the Option Agreement shall be applicable to the Termination Shares as if they were issued to Parent pursuant thereto. (e) In the event the Termination Fee is payable pursuant to Section 9.05(b)(ii) or Section 9.05 (c) as a result of the impending consummation of a Competing Transaction solely described by clause (iii) of the definition of such term, then Company need not pay the Termination Fee (or, in the case of Section 9.05(b)(ii), reimburse Parent's Expenses) if Company offers Parent, at Company's sole discretion, either (i) the right to also enter into a license, joint venture or other arrangement with Company on the same terms and conditions as such Competing Transaction, subject only to terms and conditions that may be necessary to prevent Parent from having access to data of the party with which Company is consummating such Competing Transaction (the "JV Party") (in which case similar terms preventing the JV Party from having access to Parent's data must be imposed on the JV Party as part of the Competing Transaction) or (ii) a right of first refusal to enter into a license, joint venture or other arrangement with Company, to the exclusion of the JV Party, on the same terms and conditions as such Competing Transaction, either of which rights must be available for exercise by Parent for at least 15 Business days. (f) Parent and Company agree that the agreements contained in Section 9.05(b), Section 9.05(c), Section 9.05(d) or Section 9.05(e) above are an integral part of the transaction contemplated by this Agreement and constitute liquidated damages and not a penalty. If Accordingly, if Company fails to pay to Parent any fee amounts due under Section 9.05(b), Section 9.05(c), Section 9.05(d) or Section 9.05(e), Company shall pay interest on such amounts at the cash and expenses prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (including legal fees and expensesg) In the event that Company shall terminate this Agreement pursuant to Section 9.01(g), then Parent shall promptly reimburse Company for Company's Expenses. (h) Neither Company nor Parent shall be entitled to reimbursement for its Expenses hereunder in connection with any action, including excess of $2,500,000 in the filing of any lawsuit of other legal action, taken to collect paymentaggregate.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Arrangement Merger shall be paid by the party incurring such Expenses, whether or not the Arrangement Merger is completedconsummated, except that Parent and Company each shall pay one-half of all Expenses (other than attorneys' and accountants' fees and expenses) incurred solely for printing, filing and mailing the Registration Statement and the Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Proxy Statement, Statement and any fees required to be paid under the HSR Act and the Competition Act (Canada), if any and any fees and expenses payable in connection with obtaining the Interim Order and the Final OrderAct. (b) Without limiting any other remedies available to Parent, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), ) or (ii) this Agreement shall be terminated pursuant to (x) Section 9.01(b) or (y) pursuant to Section 9.01(e) as a result of the failure to obtain the requisite approval of Company's shareholders and, in the case of either Company stockholders and (xA) at or (y), at the time of prior to such termination or failure to so approve this Agreementtermination, there shall exist or have been publicly proposed a Company Competing Transaction with respect to Company, or (iii) Parent shall terminate this Agreement pursuant to Section 9.01(f) as a result of either a breach of any covenant contained in this Agreement or an intentional breach of any representation or warranty contained in this Agreement and, at the time of such termination, either (A) there shall exist or have been proposed a Company Competing Transaction with respect to Company or and (B) within one year 12 months after such termination, Company shall enter into a definitive agreement with respect to any Company Competing Transaction or any Company Competing Transaction involving Company shall be consummated, then, in the case of (i) or (ii), promptly after such termination termination, or failure to obtain shareholder approval, or, in the case of (iiiii), immediately before the execution and delivery of such agreement or such consummation, Company shall pay to Parent an amount equal to $30 million (the "TERMINATION FEE"). (c) In the event that Parent shall terminate this Agreement pursuant to Section 9.01(f), then Company shall promptly reimburse Parent for Parent's Expenses, and if, within twelve months of such termination of this Agreement, Company shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Company shall be consummated concurrently with the consummation of such Competing Transaction, then, immediately before the execution and delivery of such agreement or such consummation, Company shall pay to Parent an amount in cash equal to $14,000,000 plus, in the case Termination Fee less the amount of (iany Expenses of Parent previously reimbursed by Company pursuant to this Section 9.05(c), (ii) or (iii) above (regardless of whether the conditions contained in (A) or (B) shall have been satisfied), an amount in cash equal to Parent's Expenses up to $1,000,000 in the aggregate, payable at the time of such termination or failure to obtain shareholder approval. (cd) Parent and Company agree that the agreements contained in Section 9.05(b) and 9.05(c) above are an integral part of the transaction contemplated by this Agreement and constitute liquidated damages and not a penalty. If Accordingly, if Company fails to pay to Parent any fee amounts due under Section 9.05(b) or 9.05(c), Company shall pay the cash and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit of other legal action, taken to collect payment, together with interest on such amounts at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Arrangement Merger shall be paid by the party incurring such Expenses, whether or not the Arrangement Merger is completedconsummated, except that Parent and Company each shall pay one-half of all Expenses (other than attorneys' and accountants' fees and expenses) incurred solely for printing, filing and mailing the Registration Statement and the Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Proxy Statement, Statement and any fees required to be paid under the HSR Act and the Competition Act (Canada), if any and any fees and expenses payable in connection with obtaining the Interim Order and the Final OrderAct. (b) Without limiting any other remedies available to Parent, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), (ii) Parent shall terminate this Agreement due to a Terminating Company Breach of any covenant or agreement contained in this Agreement pursuant to Section 9.01(f), (iii) Company shall terminate this Agreement pursuant to Section 9.01(h) or (iv) this Agreement shall be terminated pursuant to (x) Section 9.01(b) or (y) pursuant to Section 9.01(e) as a result of the failure to obtain the requisite approval of Company's the Company shareholders and, in the case of either and (xA) at or (y), at the time of prior to such termination or failure to so approve this Agreementtermination, there shall exist or have been publicly proposed a Company Competing Transaction with respect to Company, or (iii) Parent shall terminate this Agreement pursuant to Section 9.01(f) as a result of either a breach of any covenant contained in this Agreement or an intentional breach of any representation or warranty contained in this Agreement and, at the time of such termination, either (A) there shall exist or have been proposed a Company Competing Transaction with respect to Company or and (B) within one year 12 months after such termination, Company shall enter into a definitive agreement with respect to any Company Competing Transaction or any Company Competing Transaction involving Company shall be consummated, then, in the case of (i), (ii) or (iiiii), promptly after such termination termination, or failure to obtain shareholder approval, or, in the case of (iiiiv), immediately before the execution and delivery of such agreement or such consummation, Company shall pay to Parent (the "TERMINATION FEE") a sum equal to all of Parent's Expenses and an additional amount in cash equal to $14,000,000 plus, in 8,600,000. In the case event of (itermination of this Agreement by Company pursuant to Section 9.01(g), (ii) or (iii) above (regardless of whether the conditions contained in (A) or (B) Parent shall have been satisfied), pay to Company an amount in cash equal to Parentall of Company's Expenses up to $1,000,000 in the aggregate, payable at the time of such termination or failure to obtain shareholder approvalExpenses. (c) Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the transaction contemplated by this Agreement and constitute liquidated damages and not a penalty. If Accordingly, if Company fails to pay to Parent any fee amounts due under Section 9.05(b), Company shall pay the cash and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit of other legal action, taken to collect payment, together with interest on such amounts at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Arrangement Merger shall be paid by the party incurring such Expenses, whether or not the Arrangement Merger is completedconsummated, except that Parent and Company each shall pay one-half of all Expenses (other than attorney's and accountant's fees and expenses) incurred solely for printing, filing (with the SEC) 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, Statement and any fees required to be paid under the HSR Act and the Competition Act (Canada), if any and any fees and expenses payable in connection with obtaining the Interim Order and the Final OrderAct. (b) Without limiting any other remedies available to Parent, in In the event that (i) Company shall terminate this Agreement pursuant to Section 9.01(i) or Parent shall terminate this Agreement pursuant to Section 9.01(d), ) or (ii) this Agreement shall be terminated pursuant to (x) pursuant to Section 9.01(b) or (y) pursuant to Section 9.01(e9.01(e)(i) as a result of the failure to obtain the requisite approval of Company's shareholders the Company stockholders and, in the case of either (x) or (y), (A) at the time of or prior to such termination or failure to so approve this Agreementtermination, there shall exist or have been proposed a Company Competing Transaction with respect to Company, or (iii) Parent shall terminate this Agreement pursuant to Section 9.01(f) as a result of either a breach of any covenant contained in this Agreement or an intentional breach of any representation or warranty contained in this Agreement and, at the time of such termination, either (A) there shall exist or have been proposed a Company Competing Transaction with respect to Company or and (B) within one year nine months after such termination, Company shall enter into a definitive agreement with respect to any Company Competing Transaction or any Company Competing Transaction involving Company shall be consummated, then, in the case of (i) or (ii), promptly after such termination termination, or failure to obtain shareholder approval, or, in the case of (iiiii), immediately before concurrently with the execution and delivery consummation of such agreement or such consummationCompeting Transaction, Company shall pay to Parent an amount in cash equal to $14,000,000 plus, in the case greater of Four percent (i), (ii4%) or (iii) above (regardless of whether the conditions contained in (A) or (B) shall have been satisfied), an amount in cash equal to Parent's Expenses up to $1,000,000 in the aggregate, payable at the time of such termination or failure to obtain shareholder approval. (c) Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the transaction "total enterprise value" of the transactions contemplated by this Agreement and constitute liquidated damages and not a penaltyor as reflected in the Superior Proposal or the Competing Transaction, as the case may be, (the "Termination Fee") plus Parent's Expenses. If Company fails For purposes of this Section 9.05, the term "total enterprise value" shall mean the purchase price paid or offered to pay to Parent any fee due under Section 9.05(b)be paid, Company shall pay as the cash and expenses (including legal fees and expenses) case may be, in connection with any actionsuch transaction, including plus the filing amount of any lawsuit indebtedness and other liabilities of other legal action, taken to collect payment.the Company assumed or