Common use of Termination Fee Payable By Company Clause in Contracts

Termination Fee Payable By Company. (i) In the event that (A) Parent shall terminate this Agreement pursuant to Section 7.1(g), or (B) this Agreement shall be terminated (x) pursuant to Section 7.1(b) or (y) pursuant to Section 7.1(d)(i) and (1) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal that has not been publicly, irrevocably and unconditionally withdrawn prior to such termination and (2) within 6 months after any such termination pursuant to Section 7.1(b) or within 12 months after any such termination pursuant to Section 7.1(d)(i), as the case may be, Company shall enter into a definitive agreement with respect to any Company Acquisition (which Company Acquisition is later consummated) or any Company Acquisition shall be consummated, then, in the case of clause (A), promptly after such termination, or in the case of clause (B), concurrently with the consummation of such Company Acquisition, Company shall pay to Parent $36 million in cash (the "Termination Fee"). (ii) In the event that this Agreement shall be terminated pursuant to Section 7.1(d)(i), then promptly after such termination Company shall pay to Parent $15 million in cash; provided, however, that no fee shall be payable pursuant to this Section 7.3(b)(ii) if (A) prior to the payment of such fee, Company shall have paid or become obligated to pay the Termination Fee pursuant to Section 7.3(b)(i) or (B) at the time of such vote of Company's shareholders, the representations of Parent or Merger Sub contained in this Agreement shall have become untrue or inaccurate, or Parent or Merger Sub shall have failed to comply with in any material respect any covenant or agreement to be complied with by it under this Agreement, in each case such that the conditions set forth in Section 6.2(a) or 6.2(b) would not be satisfied (excluding, for purposes of this analysis, clause (B)(z) of Section 8.3(b)(ii)). Any fee payable pursuant to this Section 7.3(b)(ii) will be credited against any Termination Fee that Company becomes obligated to pay pursuant to Section 7.3(b)(i). (iii) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(f), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby. (iv) Company acknowledges that the agreements contained in this Section 7.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 7.3(b) and, in order to obtain such payment, Parent makes a claim that results in a judgment against Company for the amounts set forth in this Section 7.3(b), Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of willful breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (A) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to which the shareholders of Company immediately preceding such transaction hold less than 60% of the aggregate equity interests in the surviving or resulting entity of such transaction, (B) a sale or other disposition by Company of assets representing in excess of 40% of the aggregate fair market value of Company's business immediately prior to such sale or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 40% of the voting power of the then outstanding shares of capital stock of Company.

Termination Fee Payable By Company. (i) In the event that (A) Parent shall terminate this Agreement pursuant to Section 7.1(g), or (B) this Agreement shall be terminated (x) pursuant to Section 7.1(b) or (y) pursuant to Section 7.1(d)(i) and (1) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal that has not been publicly, irrevocably and unconditionally withdrawn prior to such termination and (2) within 6 months after any such termination pursuant to Section 7.1(b) or within 12 months after any such termination pursuant to Section 7.1(d)(i), as the case may be, Company shall enter into a definitive agreement with respect to any Company Acquisition (which Company Acquisition is later consummated) or any Company Acquisition shall be consummatedAcquisition, then, in the case of clause (A), promptly after such termination, or in the case of clause (B), concurrently with the consummation of such Company Acquisition, Company shall pay to Parent $36 million 1,000,000 in cash (the "Termination FeeTERMINATION FEE"); provided, however, that no fee shall be payable pursuant to this Section 7.3(b)(i) if at the time of such vote of Company's shareholders, the representations of Parent or Merger Sub contained in this Agreement shall have become untrue or inaccurate, or Parent or Merger Sub shall have failed to comply with in any material respect any covenant or agreement to be complied with by it under this Agreement, in each case such that the conditions set forth in Section 6.2(a) or 6.2(b) would not be satisfied (excluding, for purposes of this analysis, clause (B)(z) of Section 8.3(b)(ii)). (ii) In the event that this Agreement shall be terminated pursuant to Section 7.1(d)(i), then promptly after such termination Company shall pay to Parent $15 million 750,000 in cash; provided, however, that no fee shall be payable pursuant to this Section 7.3(b)(ii) if (A) prior to the payment of such fee, Company shall have paid or become obligated to pay the Termination Fee pursuant to Section 7.3(b)(i) or (B) at the time of such vote of Company's shareholders, the representations of Parent or Merger Sub contained in this Agreement shall have become untrue or inaccurate, or Parent or Merger Sub shall have failed to comply with in any material respect any covenant or agreement to be complied with by it under this Agreement, in each case such that the conditions set forth in Section 6.2(a) or 6.2(b) would not be satisfied (excluding, for purposes of this analysis, clause (B)(z) of Section 8.3(b)(ii)). Any fee payable pursuant to this Section 7.3(b)(ii) will be credited against any Termination Fee that Company becomes obligated to pay pursuant to Section 7.3(b)(i). (iii) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(f), then Company shall promptly reimburse Parent for Parent's reasonable costs and expenses in connection with this Agreement and the transactions contemplated herebyhereby up to $750,000. (iv) Company acknowledges that the agreements contained in this Section 7.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 7.3(b) and, in order to obtain such payment, Parent makes a claim that results in a judgment against Company for the amounts set forth in this Section 7.3(b), Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of willful breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (A) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to which the shareholders of Company immediately preceding such transaction hold less than 60% of the aggregate equity interests in the surviving or resulting entity of such transaction, (B) a sale or other disposition by Company of assets representing in excess of 40% of the aggregate fair market value of Company's business immediately prior to such sale or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 40% of the voting power of the then outstanding shares of capital stock of Company.Section

Termination Fee Payable By Company. (i) In the event that (A) Parent shall terminate this Agreement is terminated by the Company pursuant to Section 7.1(g7.1(d)(ii), or then the Company shall pay Parent within one (B1) business day of delivery of any notice of termination an amount equal to $14,000,000 (the "Termination Fee") payable by wire transfer of same day funds to an account designated in writing to the Company by Parent. Such termination by the Company shall not become effective until the Termination Fee shall have been paid. In the event that this Agreement shall be is terminated (x) pursuant to Section 7.1(b7.1(b)(i), 7.1(b)(ii), Section 7.1(c)(i) or (y) pursuant to Section 7.1(d)(i) and 7.1(c)(ii), then, in the event that, within one (1) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal that has not been publicly, irrevocably and unconditionally withdrawn prior to year following such termination and (2) within 6 months after the Company or any such termination pursuant to Section 7.1(b) or within 12 months after any such termination pursuant to Section 7.1(d)(i), as of the case may be, Company shall enter Subsidiaries enters into a definitive agreement with respect to any Company Acquisition (which Company Acquisition is later consummated) or any Company Acquisition shall be consummated, then, in the case of clause (A), promptly after such terminationto, or in consummates, any Takeover Proposal, then the case of clause (B), concurrently with the consummation of such Company Acquisition, Company shall pay Parent, upon the earlier to Parent $36 million occur of the execution of such definitive agreement or such consummation, the Termination Fee payable by wire transfer of same day funds to an account designated in cash (writing to the "Termination Fee"). (ii) In the event that this Agreement shall be terminated pursuant to Section 7.1(d)(i), then promptly after such termination Company shall pay to Parent $15 million in cashby Parent; provided, however, that no fee such Termination Fee shall be payable to Parent in the event that a termination occurs pursuant to this Section 7.3(b)(ii7.1(c)(i) if unless (A) the breach of the representations and warranties giving rise to a termination pursuant to Section 7.1(c)(i) results from the intentional and willful actions or omissions of the Company, or (B) after the date hereof and prior to the payment of such fee, Company termination a Takeover Proposal shall have been made. In the event that the Company has previously paid or become to the Parent Expenses and subsequently becomes obligated to pay the Termination Fee pursuant to Section 7.3(b)(i) or (B) at Fee, the time amount of Parent Expenses previously paid shall be credited toward the amount of such vote subsequent Termination Fee. For the avoidance of Company's shareholdersdoubt, in no event shall the representations of Parent or Merger Sub contained in this Agreement shall have become untrue or inaccurateCompany be obligated to pay, or Parent or Merger Sub shall have failed cause to comply with in any material respect any covenant or agreement to be complied with by it under this Agreementpaid, in each case such that more than once the conditions set forth in Section 6.2(a) or 6.2(b) would not be satisfied (excluding, for purposes of this analysis, clause (B)(z) of Section 8.3(b)(ii)). Any fee payable pursuant to this Section 7.3(b)(ii) will be credited against any Termination Fee that Company becomes obligated to pay pursuant to Section 7.3(b)(i)or the Parent Expenses. (iiiii) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(f), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby. (iv) The Company acknowledges that the agreements contained in this Section 7.3(b) 7.3 are an integral part of the transactions contemplated by in this Agreement, that the damages resulting from termination of this Agreement under circumstances where a Termination Fee and the Parent Expenses are payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to this Section 7.3 are reasonable forecasts of the actual damages which may be incurred and constitute liquidated damages and not a penalty, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails to promptly pay in a timely manner the amounts due pursuant to this Section 7.3(b) Termination Fee and/or the Parent Expenses of the Parent, and, in order to obtain such payment, payments Parent makes commences a claim that suit which results in a judgment against the Company for 41 the amounts set forth in this Section 7.3(b)Termination Fee or Parent Expenses, the Company shall pay to Parent its costs and expenses (including attorneys' fees and expensesreasonable attorney's fees) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of willful breach of this Agreement. For the purposes of this Agreement, "Company Acquisition" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (A) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to which the shareholders of Company immediately preceding such transaction hold less than 60% of the aggregate equity interests in the surviving or resulting entity of such transaction, (B) a sale or other disposition by Company of assets representing in excess of 40% of the aggregate fair market value of Company's business immediately prior to such sale or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 40% of the voting power of the then outstanding shares of capital stock of Company.

Termination Fee Payable By Company. (i) In the event that (A) Parent shall terminate this Agreement pursuant to Section 7.1(g), or (B) this Agreement shall be terminated (x) pursuant to Section 7.1(b) or (y) pursuant to Section 7.1(d)(i) and (1) at or prior to such termination, there shall exist or have been proposed an Acquisition Proposal that has not been publicly, irrevocably and unconditionally withdrawn prior to such termination and (2) within 6 months after any such termination pursuant to Section 7.1(b) or within 12 months after any such termination pursuant to Section 7.1(d)(i), as the case may be, Company shall enter into a definitive agreement with respect to any Company Acquisition (which Company Acquisition is later consummated) or any Company Acquisition shall be consummated, then, in the case of clause (A), promptly after such termination, or in the case of clause (B), concurrently with the consummation of such Company Acquisition, Company shall pay to Parent $36 million in cash (the "Termination FeeTERMINATION FEE"). (ii) In the event that this Agreement shall be terminated pursuant to Section 7.1(d)(i), then promptly after such termination Company shall pay to Parent $15 million in cash; provided, however, that no fee shall be payable pursuant to this Section 7.3(b)(ii) if (A) prior to the payment of such fee, Company shall have paid or become obligated to pay the Termination Fee pursuant to Section 7.3(b)(i) or (B) at the time of such vote of Company's shareholders, the representations of Parent or Merger Sub contained in this Agreement shall have become untrue or inaccurate, or Parent or Merger Sub shall have failed to comply with in any material respect any covenant or agreement to be complied with by it under this Agreement, in each case such that the conditions set forth in Section 6.2(a) or 6.2(b) would not be satisfied (excluding, for purposes of this analysis, clause (B)(z) of Section 8.3(b)(ii)). Any fee payable pursuant to this Section 7.3(b)(ii) will be credited against any Termination Fee that Company becomes obligated to pay pursuant to Section 7.3(b)(i). (iii) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(f), then Company shall promptly reimburse Parent for Parent's costs and expenses in connection with this Agreement and the transactions contemplated hereby. (iv) Company acknowledges that the agreements contained in this Section 7.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 7.3(b) and, in order to obtain such payment, Parent makes a claim that results in a judgment against Company for the amounts set forth in this Section 7.3(b), Company shall pay to Parent its costs and expenses (including attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 7.3(b) at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of willful breach of this Agreement. For the purposes of this Agreement, "Company AcquisitionCOMPANY ACQUISITION" shall mean any of the following transactions (other than the transactions contemplated by this Agreement): (A) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to which the shareholders of Company immediately preceding such transaction hold less than 60% of the aggregate equity interests in the surviving or resulting entity of such transaction, (B) a sale or other disposition by Company of assets representing in excess of 40% of the aggregate fair market value of Company's business immediately prior to such sale or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 40% of the voting power of the then outstanding shares of capital stock of Company.