Common use of Termination Fee; Expenses Clause in Contracts

Termination Fee; Expenses. (a) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(i), or (ii) the Company or any of its subsidiaries receives an Acquisition Proposal and the Company’s board of directors fails to recommend or continue recommending approval of the Merger to the Company’s shareholders or amends or withdraws its recommendation of the Merger to the Company’s shareholders, and the Company’s shareholders do not approve the Merger at the Shareholder Meeting, then the Company shall pay to the Buyer, within one Business Day following the termination of this Agreement or the Shareholder Meeting, as applicable, the amount of $1,200,000 (the “Termination Fee”). Notwithstanding anything in this Agreement to the contrary, if the Termination Fee is paid pursuant to this Section 9.3(a), then the Buyer will not have any other rights or claims against the Company, Company Bank, their Affiliates or their respective officers and directors arising from the termination of this Agreement, it being agreed that the acceptance of the Termination Fee will constitute the Buyer’s sole and exclusive remedy for such termination. (b) If this Agreement is terminated by the Company pursuant to Section 9.1(e), the Buyer shall reimburse the Company’s Costs within one Business Day of the date of termination. (c) If this Agreement is terminated by the Buyer pursuant to Section 9.1(e), the Company shall reimburse the Buyer’s Costs within one Business Day of the date of termination. (d) All amounts payable pursuant to this Section 9.3 shall be payable by wire transfer of immediately available funds to an account designated by the recipient.

Termination Fee; Expenses. (a) If (i) this Agreement is terminated by the Company (i) pursuant to Section 9.1(i10.1(g), or (ii) pursuant to Section 10.1(h)(i) and the Company, within one year after receipt by the Buyer of notice of termination in accordance with Section 10.2(a) above, executes a definitive, binding transaction agreement to consummate an Acquisition Transaction in furtherance of such Acquisition Proposal, the Company shall pay to the Buyer, within one Business Day following the later of such termination or the execution of such definitive agreement, the sum of Four Hundred Fifty Thousand and No/100 ($450,000.00) Dollars, plus an amount equal to the Buyer's Costs (i) If the Company or any of its subsidiaries receives an Acquisition Proposal and the Company’s 's board of directors fails to recommend or continue recommending approval of the Holding Company Merger to the Company’s 's shareholders or amends or withdraws its recommendation of the Holding Company Merger to the Company’s 's shareholders, and (ii) the Company’s 's shareholders do not approve the Holding Company Merger at the Shareholder Meeting, then and (iii) the Company within one year after the date of the Shareholder Meeting executes a definitive, binding transaction agreement to consummate an Acquisition Transaction, the Company shall pay to the Buyer, within one Business Day following the termination of this Agreement or the Shareholder Meeting, as applicableexecution o such definitive agreement, the sum of Four Hundred Fifty Thousand and No/100 ($450,000.00) Dollars, plus an amount of $1,200,000 (the “Termination Fee”). Notwithstanding anything in this Agreement equal to the contraryBuyer's Costs (less the amount, if any, paid by the Termination Fee is paid Company pursuant to this Section 9.3(a10.3(a), then the Buyer will not have any other rights or claims against the Company, Company Bank, their Affiliates or their respective officers and directors arising from the termination of this Agreement, it being agreed that the acceptance of the Termination Fee will constitute the Buyer’s sole and exclusive remedy for such termination). (bc) If this Agreement is terminated by the Company pursuant to Section 9.1(e10.1(d)(ii), the Buyer shall reimburse the Company’s Costs within one Business Day of the date of termination. (c) If this Agreement is terminated by the Buyer pursuant to Section 9.1(e), the Company shall reimburse the Buyer’s 's Costs within one Business Day of the date of termination. (d) If this Agreement is terminated by the Buyer pursuant to Section 10.1(d)(i), the Company shall reimburse the Buyer's Costs within one Business Day of the date of termination. (e) All amounts payable pursuant to this Section 9.3 10.3 shall be payable by wire transfer of immediately available funds to an account designated by the recipient.

Termination Fee; Expenses. (a) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(i10.1(h), or the Company shall pay to the Buyer, within one Business Day following such termination, an amount equal to five percent (ii5%) of the Merger Consideration offered by the Buyer at the time of termination of this Agreement pursuant to Section 10.1(h), such amount to be calculated based on the Average Closing Price of the Buyer’s Stock for the Measurement Period assuming that that the Effective Time occurred on the date of such termination. (b) If the Company or any of its subsidiaries receives an Acquisition Proposal and the Company’s board of directors fails to recommend or continue recommending approval of the Holding Company Merger to the Company’s shareholders or amends or withdraws its recommendation of the Holding Company Merger to the Company’s shareholders, and the Company’s shareholders do not approve the Holding Company Merger at the Shareholder Meeting, then the Company shall pay to the Buyer, within one Business Day following the termination of this Agreement or the Shareholder Meeting, as applicable, the amount of $1,200,000 (925,000(less the “Termination Fee”). Notwithstanding anything in this Agreement to the contraryamount, if any, paid by the Termination Fee is paid Company pursuant to this Section 9.3(a10.3(a), then the Buyer will not have any other rights or claims against the Company, Company Bank, their Affiliates or their respective officers and directors arising from the termination of this Agreement, it being agreed that the acceptance of the Termination Fee will constitute the Buyer’s sole and exclusive remedy for such termination). (bc) If this Agreement is terminated by the Company pursuant to Section 9.1(e10.1(d)(ii), the Buyer shall reimburse the Company’s Costs within one Business Day of the date of termination. (cd) If this Agreement is terminated by the Buyer pursuant to Section 9.1(e10.1(d)(i), the Company shall reimburse the Buyer’s Costs within one Business Day of the date of termination. (de) All amounts payable pursuant to this Section 9.3 10.3 shall be payable by wire transfer of immediately available funds to an account designated by the recipient.

Termination Fee; Expenses. (a) If (i) In the event that this Agreement is terminated by Seller pursuant to Section 10.1(h), then Seller shall pay Purchaser (or Purchaser’s designee) prior to or concurrent with such termination the Termination Fee and the Expenses. (ii) In the event that this Agreement is terminated by Purchaser pursuant to Section 10.1(g), then Seller shall pay Purchaser (or Purchaser’s designee), within two (2) Business Days after the date of such termination, the Termination Fee. (iii) In the event that this Agreement is terminated by either Purchaser or Seller pursuant to (A) Section 10.1(b) under circumstances in which the Regulatory Conditions set forth in Section 9.1(c) or (d)(ii) have not been satisfied or (B) Section 10.1(e) as a result of the failure of the applicable Governmental Authority to provide the Consent or waiver contemplated by the Regulatory Conditions set forth in Section 9.1(c) or (d)(ii), respectively, then Seller shall pay Purchaser (or Purchaser’s designee), within two (2) Business Days of the date of such termination, the Expenses. (iv) In the event that (A) this Agreement is terminated by the Company either Purchaser or Seller pursuant to Section 9.1(i10.1(b) or Section 10.1(f), or and (iiB) the Company or any of its subsidiaries receives an Acquisition Proposal and the Company’s board was publicly announced (including any disclosure of directors fails an intention to recommend make an Acquisition Proposal) or continue recommending approval of the Merger was otherwise communicated to the CompanySeller Board or directly to Seller’s shareholders or amends or withdraws its recommendation of stockholders after the Merger to the Company’s shareholders, and the Company’s shareholders do not approve the Merger at the Shareholder Meeting, then the Company shall pay to the Buyer, within one Business Day following the termination date of this Agreement and prior to the date of the Seller Stockholders’ Meeting or any adjournment or postponement thereof and such Acquisition Proposal was not, in an unequivocal manner, publicly retracted or withdrawn prior to the Shareholder Meetingdate of such Seller Stockholders’ Meeting or any adjournment or postponement thereof, as applicablethen Seller shall pay Purchaser (or Purchaser’s designee), within two (2) Business Days of the date of such termination, the amount of $1,200,000 (the “Termination Fee”). Notwithstanding anything in this Agreement to the contrary, if the Termination Fee is paid pursuant to this Section 9.3(a), then the Buyer will not have any other rights or claims against the Company, Company Bank, their Affiliates or their respective officers and directors arising from the termination of this Agreement, it being agreed that the acceptance of the Termination Fee will constitute the Buyer’s sole and exclusive remedy for such terminationExpenses. (bv) If In the event that (A) this Agreement is terminated by the Company either Purchaser or Seller pursuant to Section 9.1(e10.1(b) or Section 10.1(f) or by Purchaser pursuant to Section 10.1(c), (B) an Acquisition Proposal was publicly announced (including any disclosure of an intention to make an Acquisition Proposal) or was otherwise communicated to the Buyer shall reimburse the Company’s Costs within one Business Day of Seller Board after the date of terminationthis Agreement and prior to the date of the Seller Stockholders’ Meeting or any adjournment or postponement thereof and such Acquisition Proposal was not, in an unequivocal manner, publicly retracted or withdrawn prior to the date of such Seller Stockholders’ Meeting or any adjournment or postponement thereof, and (C) within 12 months of such termination Seller enters into an Alternative Acquisition Agreement or consummates any Acquisition Proposal, then Seller shall pay Purchaser (or Purchaser’s designee), immediately upon the earlier of entering into such Alternative Acquisition Agreement or the consummation of such Acquisition Proposal, the Termination Fee. For purposes of this Section 10.2(b)(v), each reference in the definition of Acquisition Proposal to “15%” will be deemed to be references to “50%”. (cvi) If In the event that this Agreement is terminated by the Buyer Purchaser pursuant to Section 9.1(e10.1(j), the Company then Seller shall reimburse the Buyerpay Purchaser (or Purchaser’s Costs designee), within one two (2) Business Day of Days after the date of such termination, the Expenses. (d) All amounts payable pursuant to this Section 9.3 shall be payable by wire transfer of immediately available funds to an account designated by the recipient.

Termination Fee; Expenses. (a) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(i10.1(h), or the Company shall pay to the Buyer, within one Business Day following such termination, an amount equal to five percent (ii5%) of the Merger Consideration offered by the Buyer at the time of termination of this Agreement pursuant to Section 10.1(h), such amount to be calculated based on the Average Closing Price of the Buyer's Stock for the Measurement Period assuming that that the Effective Time occurred on the date of such termination. (b) If the Company or any of its subsidiaries receives an Acquisition Proposal and the Company’s 's board of directors fails to recommend or continue recommending approval of the Holding Company Merger to the Company’s 's shareholders or amends or withdraws its recommendation of the Holding Company Merger to the Company’s 's shareholders, and the Company’s 's shareholders do not approve the Holding Company Merger at the Shareholder Meeting, then the Company shall pay to the Buyer, within one Business Day following the termination of this Agreement or the Shareholder Meeting, as applicable, the amount of $1,200,000 (925,000(less the “Termination Fee”). Notwithstanding anything in this Agreement to the contraryamount, if any, paid by the Termination Fee is paid Company pursuant to this Section 9.3(a10.3(a), then the Buyer will not have any other rights or claims against the Company, Company Bank, their Affiliates or their respective officers and directors arising from the termination of this Agreement, it being agreed that the acceptance of the Termination Fee will constitute the Buyer’s sole and exclusive remedy for such termination). (bc) If this Agreement is terminated by the Company pursuant to Section 9.1(e10.1(d)(ii), the Buyer shall reimburse the Company’s Costs within one Business Day of the date of termination. (c) If this Agreement is terminated by the Buyer pursuant to Section 9.1(e), the Company shall reimburse the Buyer’s 's Costs within one Business Day of the date of termination. (d) If this Agreement is terminated by the Buyer pursuant to Section10.1(d)(i), the Company shall reimburse the Buyer's Costs within one Business Day of the date of termination. (e) All amounts payable pursuant to this Section 9.3 10.3 shall be payable by wire transfer of immediately available funds to an account designated by the recipient.

Termination Fee; Expenses. (a) If (i) Except as otherwise provided in Section 3.6 and this Agreement is terminated Section 10.3, all fees and expenses incurred by the Company pursuant to Section 9.1(i), or (ii) parties hereto shall be borne solely by the Company or any of its subsidiaries receives an Acquisition Proposal party that has incurred such fees and the Company’s board of directors fails to recommend or continue recommending approval of the Merger to the Company’s shareholders or amends or withdraws its recommendation of the Merger to the Company’s shareholders, and the Company’s shareholders do not approve the Merger at the Shareholder Meeting, then the Company shall pay to the Buyer, within one Business Day following the termination of this Agreement or the Shareholder Meeting, as applicable, the amount of $1,200,000 (the “Termination Fee”)expenses. Notwithstanding anything in this Agreement to the contrary, if the Termination Fee is paid pursuant Deposit shall be immediately returned to this Section 9.3(a), then the Buyer will not have any other rights or claims against the Company, Company Bank, their Affiliates or their respective officers and directors arising from the following termination of this Agreement, it being agreed that the acceptance of the Termination Fee will constitute the Buyer’s sole and exclusive remedy for such terminationAgreement pursuant to Section 10.1 (other than Section 10.1(c)(i)). (b) In the event that this Agreement is terminated pursuant to Section 10.1(b)(iii) or 10.1(c)(v), then Seller shall pay to Buyer within forty-eight (48) hours of Buyer submitting reasonably documented expenses, all out of pocket fees and expenses (including financing fees and expenses), subject to a maximum limitation of $2,500,000 (“Buyer Expenses”) incurred by Buyer and its Affiliates in connection with this Agreement and the transactions contemplated hereby, payable by wire transfer of same day funds. (c) In the event this Agreement is terminated (1) by Buyer pursuant to (i) Section 10.1(d)(i)(A), (B) or (C); (ii) Section 10.1(d)(ii); or (iii) Section 10.1(d)(iii) (as to Section 10.1(d)(iii) only, if, and only if, either (x) such breach or failure to perform by Seller was material, intentional and in bad faith and renders the remedy of specific performance unavailable to Buyer due to an encumbrance on one or more Target Properties or sale or other conveyance of one or more Target Properties, or (y) such breach or failure relates solely to Seller’s and/or its Subsidiaries’ or Affiliates’ failure to consummate the transactions contemplated under any other transactions and agreements); or (2) by Seller pursuant to Section 10.1(c)(ii) or 10.1(c)(iv), then Seller shall pay Buyer, on the date of termination, the Seller’s Termination Fee, payable by wire transfer of same day funds. (d) In the event this Agreement is terminated by Seller pursuant to Section 10.1(c)(i), then Seller shall retain the Deposit and Buyer shall be additionally be obligated to pay to reimburse to Seller the cost of any New Surveys for which Seller has paid. (e) If this Agreement is terminated by the Company pursuant to Section 9.1(e10.1(d)(i)(D), then Seller shall pay to Buyer, within two (2) Business Days after such termination, $10,000,000.00 in immediately available funds by wire transfer to Buyer’s account (the “Termination Fee”). Notwithstanding the previous sentence, if, at least two (2) Business Days prior to the date on which Buyer may send a notice to terminate this Agreement pursuant to Section 10.1(d)(i)(D) (such date which is two (2) Business Days prior is referred to as the “Extension Date”), Seller delivers written notice to Buyer that Seller elects to extend the Outside Closing Date until March 27, 2013, then (i) the Outside Closing Date shall be March 27, 2013, and (ii) Seller’s obligation to pay the Termination Fee shall be deferred as provided in the balance of this sentence, provided that if this Agreement is subsequently terminated pursuant to Section 10.1(d)(i)(D) (taking into account the new Outside Closing Date), then Seller shall pay to Buyer the Termination Fee within two (2) Business Days after such termination, in immediately available funds by wire transfer to Buyer’s account. At such time as the matters described in the definition of Maryland Law Vote have been voted on by the stockholders of Seller at the Seller Stockholder Meeting duly convened therefor or any adjournment or postponement thereof prior to the date which is ten (10) days prior to the then applicable Outside Closing Date, Seller shall have no further obligation to pay the Termination Fee regardless of how the stockholders voted their shares on any matter to be voted upon at such Seller Stockholder Meeting. (f) Notwithstanding anything in this Agreement to the contrary, each party’s right to retain or obtain the return of the Deposit, as applicable (and in the case of Buyer, the additional rights to receive payment of the Seller’s Termination Fee, the Termination Fee or Buyer Expenses, as applicable, and to specific performance solely as provided in Section 10.3(g)), shall be the sole and exclusive remedy of such party and its Subsidiaries and any of their respective former, current or future directors, officers, partners, managers, members, stockholders or Affiliates (“Related Party”) against the other party or any Related Party of such party for any loss suffered as a result of any breach of any representation, warranty, covenant or obligation in this Agreement by the other party, and none of such party or its Related Party shall have any further liability or obligations relating to or arising out of this Agreement including any other remedy at law or equity, and provided further, that in the event the Buyer receives the Seller’s Termination Fee, in the circumstances provided under Section 10.3(c), the Termination Fee, in the circumstances provided under Section 10.3(e), or Buyer Expenses in the circumstances provided under Section 10.3(b), it shall not also be entitled to specific performance. Notwithstanding anything else set forth in this Agreement, in the event Buyer receives (i) the Seller’s Termination Fee, it shall not be entitled to either of the Termination Fee or the Buyer Expenses, or (ii) the Termination Fee, it shall not be entitled to either of the Seller’s Termination Fee or the Buyer Expenses, or (iii) the Buyer Expenses, it shall not be entitled to either of the Termination Fee or the Seller’s Termination Fee. The parties acknowledge that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement. (g) The parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed by Seller in accordance with the terms hereof and that, prior to the effective termination of this Agreement pursuant to Section 10.1 (other than pursuant to a proper termination under Section 10.1(a), 10.1(b)(i), 10.1(b)(iii), or 10.1(c)), Buyer shall be entitled to an injunction or injunctions to prevent breaches of this Agreement by Seller or to enforce specifically the terms and provisions of this Agreement; provided, that in the event Buyer elects to pursue specific performance by Seller of its obligations to consummate the Closing, the Buyer shall reimburse not be entitled to receive the CompanySeller’s Costs within one Business Day of Termination Fee or Buyer Expenses, as applicable. If the Closing does not occur on or prior to the Outside Closing Date, Buyer shall have the right to provide written notice to Seller prior to 11:59 p.m. on the date that is four (4) days after the Outside Closing Date (the “Remedy Choice Deadline”) that it intends to pursue the remedy of termination. specific performance, which notice shall be non-binding on Buyer. Buyer shall have the right to bring an action seeking specific performance within ten (c10) Business Days thereafter. If Buyer delivers such notice prior to the Remedy Choice Deadline, any prior termination of this Agreement is terminated by the Buyer pursuant to Section 9.1(e)10.1(b)(ii) shall be automatically revoked and ineffective ab initio, and this Agreement shall be deemed fully reinstated and in full force and effect, so as to allow Buyer to pursue the Company remedy of specific performance. No termination of this Agreement shall reimburse be effective following the Remedy Choice Deadline unless (i) Buyer shall have failed to bring an action seeking specific performance within ten (10) Business Days after delivery of notice of Buyer’s Costs within one Business Day intention to pursue the remedy of specific performance; (ii) a court of competent jurisdiction has made a final determination that the date remedy of termination. specific performance will not be made available to Buyer; or (diii) All amounts payable pursuant to this Buyer otherwise consents thereto; provided, however, that the original termination under Section 9.3 10.1(b)(ii) shall be payable by wire transfer of immediately available funds to an account designated by the recipient.deemed effective if Buyer does not bring such action within such ten (10)

Termination Fee; Expenses. (a) If this Agreement terminates: (A) under Section 10.1(g) and the Board of Directors of Albemarle First submits to the Albemarle First’s shareholders for a vote or recommends a Transaction with a third party, or (B) under Section 10.1(h), or (C) otherwise as a result of the events described in clause (i) this Agreement is terminated by below and prior to the Company pursuant date of termination (i) Albemarle First solicited or encouraged any inquiry, offer or proposal from a third party to engage in a Transaction or initiated discussions or negotiations with a third party with respect to a Transaction or Albemarle First receives an inquiry or unsolicited proposal from a third party to engage in a Transaction which Albemarle First accepts as permitted in Section 9.1(i), or 5.5 hereof and (ii) the Company or any Board of its subsidiaries receives an Acquisition Proposal and the Company’s board Directors of directors fails to recommend or continue recommending approval of the Merger Albemarle First submits to the CompanyAlbemarle First’s shareholders for a vote or amends or withdraws its recommendation of the Merger to the Company’s shareholders, and the Company’s shareholders do not approve the Merger at the Shareholder Meetingrecommends a Transaction with such third party, then the Company under (A), (B) or (C) above, Albemarle First shall pay Premier on demand the amount by which One Million Two Hundred Fifty Thousand Dollars ($1,250,000) exceeds any amount paid to the BuyerPremier pursuant to Section 10.6 (e); provided, within one Business Day following the termination of no payment under this Section 11.2 (a) shall be due if (A) Premier wrongfully terminates this Agreement or (B) if, at the Shareholder Meeting, as applicable, the amount of $1,200,000 (the “Termination Fee”). Notwithstanding anything in time this Agreement terminated Albemarle First is entitled to terminate or to refuse to consummate the contrary, if the Termination Fee is paid Merger pursuant to this Section 9.3(a10.1(c) or 10.1 (d), then the Buyer will not have any other rights or claims against the Company, Company Bank, their Affiliates or their respective officers and directors arising from the termination of this Agreement, it being agreed that the acceptance of the Termination Fee will constitute the Buyer’s sole and exclusive remedy for such termination. (b) If the Premier Average Price of Premier Shares is less than $16.20 per share, Albemarle First may terminate this Agreement is terminated by the Company pursuant Agreement, but shall be obligated to Section 9.1(e), the Buyer shall reimburse the Company’s Costs within one Business Day pay up to Two Hundred Thousand Dollars ($200,000) of the date of terminationout-of-pocket cost incurred by Premier in connection with the transactions contemplated by this Agreement. (c) If this Agreement is terminated by the Buyer pursuant to Section 9.1(e), the Company shall reimburse the Buyer’s Costs within one Business Day of the date of termination. (d) All amounts payable pursuant to this Section 9.3 shall be payable by wire transfer of immediately available funds to an account designated by the recipient.