Common use of Additional Fees and Expenses Clause in Contracts

Additional Fees and Expenses. (a) Except as otherwise provided in this Section 8.4, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Closing is consummated. (b) In the event that: (i) (A) an Acquisition Proposal (whether or not conditional) or intention to make an Acquisition Proposal (whether or not conditional) is made directly to the Seller’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of the Seller or the Seller Board, (B) this Agreement is terminated by the Seller or the Buyer pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by the Buyer pursuant to Section 8.1(c)(i), and (C) within 15 months after the date of such termination, the Seller enters into an agreement in respect of any Acquisition Proposal, or recommends or submits an Acquisition Proposal to its stockholders for adoption, or a transaction in respect of any Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (provided, that for purposes of this clause (C), each reference to “15%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); (ii) this Agreement is terminated by the Buyer pursuant to Section 8.1(c)(ii); or (iii) this Agreement is terminated by the Seller pursuant to Section 8.1(d)(ii); then, in any such event, the Seller shall pay to the Buyer a fee of $4,850,000 (the “Seller Termination Fee”) less the amount of Buyer Expenses previously paid to the Buyer (if any) pursuant to Section 8.4(c), it being understood that in no event shall the Seller be required to pay the Seller Termination Fee on more than one occasion; provided, that the payment by the Seller of the Seller Termination Fee pursuant to this Section 8.4 shall not relieve the Seller from any liability or damage resulting from a willful and material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or fraud. (c) In the event that this Agreement is terminated by the Seller or the Buyer pursuant to Section 8.1(b)(iii) under circumstances in which the Seller Termination Fee is not then payable pursuant to Section 8.4(b)(i), then the Seller shall reimburse the Buyer and its Affiliates for all of their reasonable and documented out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to the Buyer and its Affiliates) actually incurred by the Buyer or on its behalf in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”), up to a maximum amount of $2,250,000; provided, that the payment by the Seller of the Buyer Expenses pursuant to this Section 8.4(c), (i) shall not relieve the Seller of any subsequent obligation to pay the Seller Termination Fee pursuant to Section 8.4(b) except that such obligation shall be reduced by the amount of the Buyer Expenses already paid to the Buyer by the Seller and (ii) shall not relieve the Seller from any liability or damage resulting from a willful and material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or fraud. (d) Payment of the Seller Termination Fee shall be made by wire transfer of same day funds to the accounts designated by the Buyer (i) on the earliest of the execution of a definitive agreement with respect to, submission to the stockholders of, or consummation of, any transaction contemplated by an Acquisition Proposal, as applicable, in the case of a Seller Termination Fee payable pursuant to Section 8.4(b)(i), (ii) as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of termination by the Buyer pursuant to Section 8.1(c)(ii), or (iii) simultaneously with, and as a condition to the effectiveness of, termination, in the case of a termination by the Seller pursuant to Section 8.1(d)(ii). Payment of the Buyer Expenses shall be made by wire transfer of same day funds to the accounts designated by the Buyer within two Business Days after the Seller’s having been notified of the amounts thereof by the Buyer.

Additional Fees and Expenses. (a) Except as otherwise provided in this Section 8.4, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Closing is consummated.. 77 (b) In the event that: : (i) (A) an Acquisition Proposal (whether or not conditional) or intention to make an Acquisition Proposal (whether or not conditional) is made directly to the Seller’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of the Seller or the Seller Board, (B) this Agreement is terminated by the Seller or the Buyer pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii) or by the Buyer pursuant to Section 8.1(c)(i), and (C) within 15 months after the date of such termination, the Seller enters into an agreement in respect of any Acquisition Proposal, or recommends or submits an Acquisition Proposal to its stockholders for adoption, or a transaction in respect of any Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (provided, that for purposes of this clause (C), each reference to “15%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); ; (ii) this Agreement is terminated by the Buyer pursuant to Section 8.1(c)(ii); or or (iii) this Agreement is terminated by the Seller pursuant to Section 8.1(d)(ii); then, in any such event, the Seller shall pay to the Buyer a fee of $4,850,000 (the “Seller Termination Fee”) less the amount of Buyer Expenses previously paid to the Buyer (if any) pursuant to Section 8.4(c), it being understood that in no event shall the Seller be required to pay the Seller Termination Fee on more than one occasion; provided, that the payment by the Seller of the Seller Termination Fee pursuant to this Section 8.4 shall not relieve the Seller from any liability or damage resulting from a willful and material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or fraud. (c) In the event that this Agreement is terminated by the Seller or the Buyer pursuant to Section 8.1(b)(iii) under circumstances in which the Seller Termination Fee is not then payable pursuant to Section 8.4(b)(i), then the Seller shall reimburse the Buyer and its Affiliates for all of their reasonable and documented out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to the Buyer and its Affiliates) actually incurred by the Buyer or on its behalf in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”), up to a maximum amount of $2,250,000; provided, that the payment by the Seller of the Buyer Expenses pursuant to this Section 8.4(c), (i) shall not relieve the Seller of any subsequent obligation to pay the Seller Termination Fee pursuant to Section 8.4(b) except that such obligation shall be reduced by the amount of the Buyer Expenses already paid to the Buyer by the Seller and (ii) shall not relieve the Seller from any liability or damage resulting from a willful and material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or fraud. (d) Payment of the Seller Termination Fee shall be made by wire transfer of same day funds to the accounts designated by the Buyer (i) on the earliest of the execution of a definitive agreement with respect to, submission to the stockholders of, or consummation of, any transaction contemplated by an Acquisition Proposal, as applicable, in the case of a Seller Termination Fee payable pursuant to Section 8.4(b)(i), (ii) as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of termination by the Buyer pursuant to Section 8.1(c)(ii), or (iii) simultaneously with, and as a condition to the effectiveness of, termination, in the case of a termination by the Seller pursuant to Section 8.1(d)(ii). Payment of the Buyer Expenses shall be made by wire transfer of same day funds to the accounts designated by the Buyer within two Business Days after the Seller’s having been notified of the amounts thereof by the Buyer.78