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 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 other SEC and other regulatory filing fees incurred in connection with the Registration Statement and any fees required to be paid under the HSR Act. (b) Without limiting any other remedies available to Parent for an intentional breach of this Agreement, in the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d) or due to a Terminating Company Breach of any covenant or agreement contained in this Agreement pursuant to Section 9.01(h) (but only if such Terminating Company Breach arises out of the bad faith or willful misconduct of Company), (ii) Parent or Company shall terminate this Agreement pursuant to Section 9.01(f) or due to a Terminating Company Breach of any representation or warranty contained in this Agreement pursuant to Section 9.01(h), and (A) within ninety (90) days after such termination, Company shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Company shall be consummated within one hundred eighty (180) days after such termination, and (B) in the case of a termination pursuant to Section 9.01(f), prior to the Shareholder Meeting, there shall have been publicly announced a Competing Transaction; or (iii) Company shall terminate this Agreement pursuant to Section 9.01(k), then Company shall pay to Parent (the "COMPANY TERMINATION FEE") a sum equal to all of Parent's Expenses up to $750,000 and an additional amount equal to $3,000,000. Notwithstanding the foregoing, no fee shall be paid pursuant to this Section 9.05(b) if Parent shall be in material breach of its obligations hereunder. Any Company Termination Fee shall be paid in same day funds within three (3) Business Days of the date of termination. (c) Without limiting any other remedies available to Company for an intentional breach of this Agreement, in the event that (i) Company shall terminate this Agreement pursuant to Section 9.01(e) or due to a Terminating Parent Breach of any covenant or agreement contained in this Agreement pursuant to Section 9.01(i) (but only if such Terminating Parent Breach arises out of the bad faith or willful misconduct of Parent), (ii) Company or Parent shall terminate this Agreement pursuant to Section 9.01(g) or due to a Terminating Parent Breach of any representation or warranty contained in this Agreement pursuant to Section 9.01(i), and (A) within ninety (90) days after such termination, Parent shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Parent shall be consummated within one hundred eighty (180) days after such termination, and (B) in the case of a termination pursuant to Section 9.01(f), prior to the Shareholder Meeting, there shall have been publicly announced a Competing Transaction; then Parent shall pay to Company (the "PARENT TERMINATION FEE") a sum equal to all of Company's Expenses up to $750,000 and an additional amount equal to $3,000,000. 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.

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 other 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) Without limiting any other remedies available to Parent for an intentional breach of this Agreement, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d) or (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(h) (9.01(g), but only if such Terminating Company Breach arises out of the bad faith or willful misconduct of Company), (ii) Parent or Company shall terminate this Agreement pursuant to Section 9.01(f) or due to a Terminating Company Breach of any representation or warranty contained in this Agreement pursuant to Section 9.01(h), and (A) within ninety (90) days after such termination, Company shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Company shall be consummated within one hundred eighty (180) days after such termination, and (B) in the case of a termination pursuant to Section 9.01(f), prior to the Shareholder Meeting, there shall have been publicly announced a Competing Transaction; or (iii) Company shall terminate this Agreement pursuant to Section 9.01(k)breach was intentional, then Company shall pay to Parent (the "COMPANY TERMINATION FEECompany Termination Fee") a sum equal to all of Parent's Expenses up to $750,000 and an additional amount equal to $3,000,0004.5 million. Notwithstanding the foregoing, no fee shall be paid pursuant to this Section 9.05(b) if Parent shall be in material breach of its obligations hereunder. Any Company Termination Fee shall be paid in same day funds within three (3) Business Days business days of the date of termination. (c) Without limiting any other remedies available to Company for an intentional breach of this Agreement, in In the event that (i) Company shall terminate this Agreement pursuant to Section 9.01(e) or (ii) Company shall terminate this Agreement due to a Terminating Parent Breach of any covenant or agreement contained in this Agreement pursuant to Section 9.01(i) (9.01(h), but only if such Terminating Parent Breach arises out of the bad faith or willful misconduct of Parent)breach was intentional, (ii) Company or Parent shall terminate this Agreement pursuant to Section 9.01(g) or due to a Terminating Parent Breach of any representation or warranty contained in this Agreement pursuant to Section 9.01(i), and (A) within ninety (90) days after such termination, Parent shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Parent shall be consummated within one hundred eighty (180) days after such termination, and (B) in the case of a termination pursuant to Section 9.01(f), prior to the Shareholder Meeting, there shall have been publicly announced a Competing Transaction; then Parent shall pay to Company (the "PARENT TERMINATION FEEParent Termination Fee") a sum equal to all of Company's Expenses up to $750,000 and an additional amount equal to $3,000,0004.5 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 business days of the date of termination. (d) Parent and Company agree that the agreements contained in Sections 9.05(b) and 9.05(c) above are an integral part of the transaction contemplated by this Agreement and constituted 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. Similarly, 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 any action, including the filing of any lawsuit of other legal action, taken to collect payment.

Termination Fee; Expenses. In the event of a termination of this Agreement by the Company pursuant to Section 8.1(d), the Company shall pay to the Parent, in immediately available funds, the sum of $8 million and shall promptly reimburse upon demand therefor (aup to a maximum amount of $2 million) Except as all documented out-of-pocket expenses incurred by Parent and Subsidiary in connection with the transactions contemplated by this Agreement. In the event that Company Shares are not purchased pursuant to the Offer, the Parent shall pay to the Company, in immediately available funds, the sum of $8 million and shall promptly reimburse upon demand therefor (up to a maximum amount of $2 million) all documented out-of-pocket expenses incurred by the Company in connection with the transactions contemplated by this Agreement, unless such failure to purchase Company Shares is (i) attributable solely to an event of the kind described in Section 8.1(b)(i) that is not the result of any action or inaction by the Parent or the Subsidiary which constitutes a breach of this Agreement, (ii) attributable solely to Parent's valid termination of this Agreement pursuant to Section 8.1(b)(ii) by reason of the Company's breach of a representation, warranty, covenant or agreement set forth in this Agreement, or (iii) attributable solely to a failure of a condition set forth in Exhibit 1.1 by reason of any act, event or circumstance that is beyond the control of the Parent and the Subsidiary. Notwithstanding this Section 9.058.2, no payment of the fee contemplated by this Section 8.6 shall relieve any party to this Agreement from liability to another for its willful and material breach of any of its representations, warranties, covenants or other agreements set forth in this Agreement. Except as otherwise required by the preceding sentences of this Section 8.6, all Expenses costs and expenses incurred in connection with this Agreement and the Merger transactions contemplated hereby 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 other SEC and other regulatory filing fees incurred in connection with the Registration Statement and any fees required to be paid under the HSR Actexpense. (b) Without limiting any other remedies available to Parent for an intentional breach of this Agreement, in the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d) or due to a Terminating Company Breach of any covenant or agreement contained in this Agreement pursuant to Section 9.01(h) (but only if such Terminating Company Breach arises out of the bad faith or willful misconduct of Company), (ii) Parent or Company shall terminate this Agreement pursuant to Section 9.01(f) or due to a Terminating Company Breach of any representation or warranty contained in this Agreement pursuant to Section 9.01(h), and (A) within ninety (90) days after such termination, Company shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Company shall be consummated within one hundred eighty (180) days after such termination, and (B) in the case of a termination pursuant to Section 9.01(f), prior to the Shareholder Meeting, there shall have been publicly announced a Competing Transaction; or (iii) Company shall terminate this Agreement pursuant to Section 9.01(k), then Company shall pay to Parent (the "COMPANY TERMINATION FEE") a sum equal to all of Parent's Expenses up to $750,000 and an additional amount equal to $3,000,000. Notwithstanding the foregoing, no fee shall be paid pursuant to this Section 9.05(b) if Parent shall be in material breach of its obligations hereunder. Any Company Termination Fee shall be paid in same day funds within three (3) Business Days of the date of termination. (c) Without limiting any other remedies available to Company for an intentional breach of this Agreement, in the event that (i) Company shall terminate this Agreement pursuant to Section 9.01(e) or due to a Terminating Parent Breach of any covenant or agreement contained in this Agreement pursuant to Section 9.01(i) (but only if such Terminating Parent Breach arises out of the bad faith or willful misconduct of Parent), (ii) Company or Parent shall terminate this Agreement pursuant to Section 9.01(g) or due to a Terminating Parent Breach of any representation or warranty contained in this Agreement pursuant to Section 9.01(i), and (A) within ninety (90) days after such termination, Parent shall enter into a definitive agreement with respect to any Competing Transaction or any Competing Transaction involving Parent shall be consummated within one hundred eighty (180) days after such termination, and (B) in the case of a termination pursuant to Section 9.01(f), prior to the Shareholder Meeting, there shall have been publicly announced a Competing Transaction; then Parent shall pay to Company (the "PARENT TERMINATION FEE") a sum equal to all of Company's Expenses up to $750,000 and an additional amount equal to $3,000,000. 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.