Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. (a) If on the Final Termination Date (as extended, as the case may be in accordance with Section 9.1(d)) Buyer is unable or unwilling to consummate the transactions contemplated by this Agreement after Sellers, or the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject to Section 9.4(b), the closing conditions set forth in Section 7.1 (other than the condition set forth in Section 7.1(h)), and Sellers exercise their right to terminate this Agreement, Buyer shall pay the Company a break-up fee in the additional amount of $500,000 (the “Break-Up Fee”). (b) Solely for purposes of determining whether Sellers have satisfied their closing conditions and are eligible to receive the Break-Up Fee, the following condition shall replace the condition set forth in Section 7.1(a): “All representations and warranties of the Sellers in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack of Material Adverse Effect”, shall be true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.” (c) The Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be by wire transfer of immediately available funds to an account(s) designated by the Sellers.

Break-Up Fee. (a) If on Subject to and upon the Final Termination Date occurrence of a "Break-up Event" (as extended, as the case may be defined in accordance with Section 9.1(d)8.3(b) Buyer is unable or unwilling to consummate the transactions contemplated by this Agreement after Sellers, or the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject to Section 9.4(bbelow), the closing conditions set forth Company shall pay, in immediately available funds, to Parent at the offices of Parent in New Haven, Connecticut, the "Break-up Fee" specified in Section 7.1 (other than the condition set forth in Section 7.1(h)), and Sellers exercise their right to terminate this Agreement, Buyer shall pay the Company a break-up fee in the additional amount of $500,000 (the “Break-Up Fee”)8.3(c) hereof. (b) Solely for purposes A "Break-up Event" shall be deemed to have occurred if the Company or any subsidiary or Shareholder (or any successor, assign, trustee or custodian thereof) shall enter into or the Board of determining Directors of the Company or any subsidiary or Shareholder shall do or authorize or approve (with or without and whether Sellers or not subject to, diligence, financing or other conditions), or publicly announce or confirm an agreement with any group, entity or person other than Parent in violation of or with respect to any of the matters referred to in Section 8.1 of this Agreement. (c) If a Break-up Event shall have satisfied their closing conditions and are eligible occurred prior to receive the expiration of the Closing Period, then the Break-Up Feeup Fee shall be $3.5 million; provided, that the obligation of the Company under this subsection (c) to pay such Break-up Fee shall be subject to the satisfaction of the following condition conditions: (i) Parent shall replace not have theretofore exercised any right or stated in writing its intent to terminate the condition set forth in Merger, except as a consequence of the failure of the Company, a Shareholder or other party to perform its obligations under Section 7.1(a): “All 8.1(b); (ii) the representations and warranties of the Sellers Parent contained in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack of Material Adverse Effect”, shall be have been true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack material respects and Parent shall have performed all of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except its obligations under this Agreement to the extent such failures of such representations and warranties required to be true performed on or prior to the date of the Break-up Event; and (iii) consummation of the transaction contemplated hereby shall not have been prevented by the failure of any condition to the obligations of the Company set forth in this Agreement to have been satisfied as a consequence of any act or omission by Parent. (d) The obligations of the Company to pay the Break-up Fee shall be absolute and complete unconditional and shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company or a Shareholder may have against Parent or Sub or any principal thereof, or anyone else. Neither Parent nor any principal thereof shall be required to mitigate its or his damages. (e) If a Break-up Event occurs, Parent shall nevertheless continue to be entitled to make competing bids for any or all of the business of the Company or other selling party (and to present the relative merits of bids it may make to parties in all material respects (or in all respects, interest) but in the case of clause (ii) aboveevent that Parent is the successful bidder, after giving effect then Parent shall not be entitled to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.” (c) The Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be by wire transfer of immediately available funds to an account(s) designated by the Sellersup Fee.

Break-Up Fee. (a) If on In recognition of the Final Termination Date (as extendedefforts, as expenses and other opportunities foregone by Buyer while structuring and pursuing the case may be in accordance with Section 9.1(d)) Buyer is unable or unwilling to consummate the transactions contemplated by this Agreement after SellersMerger, or the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject to Section 9.4(b), the closing conditions set forth in Section 7.1 (other than the condition set forth in Section 7.1(h)), and Sellers exercise their right to terminate this Agreement, Buyer Company shall pay the Company to Buyer a break-up fee in the additional amount of equal to $500,000 560,000 (the “Break-Up Fee”). (b) Solely for purposes of determining whether Sellers have satisfied their closing conditions and are eligible to receive the Break-Up Fee, the following condition shall replace the condition set forth in Section 7.1(a): “All representations and warranties of the Sellers in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack of Material Adverse Effect”, shall be true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.” (c) The Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be by wire transfer of immediately available funds to an account(saccount specified by Buyer in the event of any of the following: (i) in the event Buyer terminates this Agreement pursuant to Section 7.01(g), Company shall pay Buyer the Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) in the event that after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to the Company Board or senior management of Company or has been made directly to its shareholders generally (and not withdrawn) or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to Company and (A) thereafter this Agreement is terminated by either Buyer or Company pursuant to Section 7.01(c) or Section 7.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 7.01(e) as a result of willful breach of a covenant by Company, and (B) prior to the date that is twelve (12) months after the date of such termination, Company enters into any agreement to consummate, or consummates, an Acquisition Transaction (whether or not the same Acquisition Transaction which was the subject of the foregoing Acquisition Proposal), then Company shall, on the earlier of the date it enters into such agreement and the date of consummation of such transaction, pay Buyer the Break-Up Fee, provided, that for purposes of this Section 7.02(a), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%”. (b) Company and Buyer each agree that the agreements contained in this Section 7.02 and in Section 7.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither Company nor Buyer would have entered into this Agreement; accordingly, if Company fails to promptly pay any amounts due under this Section 7.02, or Company or Buyer fails to promptly pay any amounts due under Section 7.03, Company or Buyer, as applicable, shall pay interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate of interest equal to the sum of (i) the rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer or Company, as applicable, (including legal fees and expenses) reasonably incurred in connection with such suit. (c) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that if Company pays or causes to be paid to Buyer or to Buyer Bank the Break-Up Fee in accordance with Section 7.02(a), neither Company nor Company Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Company Bank) will have any further obligations or liabilities to Buyer or Buyer Bank with respect to this Agreement or the transactions contemplated by this Agreement and the Sellerspayment of such amounts shall be Buyer’s sole and exclusive remedy against Company, Company Bank, and their respective Affiliates, Representatives or successors in interest.

Break-Up Fee. 5.1 In the event of any termination or lapse of this Call Option Agreement (aincluding, for the avoidance of doubt, if the Beneficiary does not sign one or several of the Transaction Documents) If on the Final Termination Date for any reason whatsoever (as extended, as the case may be in accordance with Section 9.1(d)) Buyer is unable or unwilling to consummate the transactions contemplated by this Agreement after Sellers, or the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject including pursuant to Section 9.4(b2.3(b)(i), Section 4.2 or Section 10.1), other than as a result of (x) the closing conditions set forth execution of the Purchase Agreement as provided in Section 7.1 10.1(i) or (other than y) the condition set forth in Section 7.1(h))occurrence of a Beneficiary MAE Termination, and Sellers exercise their right to terminate this Agreement, Buyer the Beneficiary shall pay to the Company Grantor, upon its first request, a break-up fee in the additional amount lump sum of $500,000 €5,000,000 (the “Break-Up Fee”). (b) Solely for purposes 5.2 The Grantor’s receipt in full of determining whether Sellers have satisfied their closing conditions and are eligible to receive the Break-Up Fee, in circumstances where the following condition shall replace the condition set forth in Section 7.1(a): “All representations and warranties of the Sellers in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack of Material Adverse Effect”, shall be true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.” (c) The Break-Up Fee represents is owed pursuant to this Section 5, shall constitute the partiessole and exclusive monetary remedy of the Grantor against the Beneficiary and its Affiliates and any of their respective Subsidiaries, Affiliates and other Representatives for all Losses suffered as a result of the termination of this Call Option Agreement in accordance with Section 10, and upon payment of such amount, none of Beneficiary, its Affiliates and their respective Subsidiaries, Affiliates and other Representatives shall have any further liability or obligation relating to or arising out of this Call Option Agreement or the transactions contemplated by this Call Option Agreement, save for damages that may be due to the Grantor in the event of a Willful Breach by the Beneficiary of one or several of its material obligations hereunder. The Parties acknowledge and agree that the agreements contained in this Section 5 are an integral part of the transactions contemplated herein, and that, without these agreements, the Parties would not otherwise enter into this Agreement. Accordingly, if the Beneficiary fails to pay the Break-Up Fee pursuant to Section 5.1 on or prior to the date such amount is due hereunder, and, in order to obtain such payment, the Grantor commences a Proceeding that results in a final, non-appealable judgment against the Beneficiary for the payment of all or any portion of such amounts, the Beneficiary shall pay, or cause to be paid, to the Grantor, interest on such amount at an annual rate equal to 8%, which shall accrue from such date through the date such payment is actually delivered to the Grantor or its designee. The costs and expenses (including reasonable attorneys’ estimate of damages to Sellers fees and expenses) incurred by the prevailing party in connection with such termination and Proceeding shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be by wire transfer of immediately available funds to an account(s) designated paid by the Sellersnon-prevailing party.

Break-Up Fee. Notwithstanding the provisions of Section 11.2, in the event that (a) If Seller terminates this Agreement pursuant to clause (i) of Section 11.1(c) under circumstances where (i) the failure to satisfy, comply with or perform any of the conditions set forth in Section 9 above shall arise by reason of a default by Buyer of any of its obligations under this Agreement or the failure by Buyer to use commercially reasonably efforts to satisfy, comply with or perform such condition if such condition could have been satisfied, complied with or performed through Buyer’s commercially reasonable efforts, and (ii) the failure to satisfy, comply with or perform such condition is or would reasonably be expected to have a material adverse effect on the Final Termination Date assets, business, results of operations or condition (financial or otherwise) of Seller and its subsidiaries, taken as extendeda whole, upon or after the Closing, (b) Seller terminates this Agreement pursuant to clause (ii) of Section 11.1(c) and as of such date Seller is ready, willing and able to effect the case may be Closing (subject to any required performance by Buyer in accordance with order to satisfy any of conditions set forth in Section 9.1(d9) but Buyer fails to effect the Closing for any reason (or for no reason), (c) Buyer is unable or unwilling terminates this Agreement pursuant to consummate Section 11.1(b) in circumstances where (i) Buyer has not consummated the transactions contemplated by this Agreement after Sellers, or as a result of the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject to Section 9.4(b), the closing conditions set forth in Section 7.1 8 above not having been satisfied, complied with or performed (other than and such failure of satisfaction, compliance or performance is not the condition set forth in Section 7.1(h))result, and Sellers exercise their right to terminate this Agreementdirectly or indirectly, Buyer shall pay the Company a break-up fee in the additional amount of $500,000 (the “Break-Up Fee”). (b) Solely for purposes any breach of determining whether Sellers have satisfied their closing conditions and are eligible to receive the Break-Up Fee, the following condition shall replace the condition set forth in Section 7.1(a): “All representations and warranties of the Sellers in this Agreement and on the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack part of Material Adverse Effect, shall be true and complete in all material respectsBuyer), and (ii) which are qualified as the failure to “materiality” satisfy, comply with or “lack perform such conditions, or the consummation of Material Adverse Effect”the Closing and operation of the Business following the Closing without satisfaction, shall compliance with or performance of such conditions, has not had and would not reasonably be true and correct expected to have, individually or in all respectsthe aggregate, after giving effect to such qualifications or “materiality” as to lack of a Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such timeor (d) Buyer terminates this Agreement pursuant to Section 11.1(e), except for representations and warranties that speak as of a specific date or timethen Buyer shall pay to Seller, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.” (c) The Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be by wire transfer of immediately available funds funds, the sum of $2,000,000 (the “Break Up Fee”) promptly after the date of the event giving rise to an account(ssuch payment obligation, which payment shall constitute liquidated damages and shall be Seller’s sole and exclusive remedy for any such termination. Notwithstanding anything to the contrary in clauses (b) designated or (c) of this Section 11.3, no Break Up Fee shall be required to be paid by Buyer pursuant to this Section 11.3 if, at the Sellerstime of termination of this Agreement, either (A) the applicable waiting period under the HSR Act has not expired without governmental action and same is not the result of any failure by Buyer to use commercially reasonable efforts to pursue and obtain HSR Act clearance, or (B) a consent under or amendment to the Credit Agreement entered into as of July 30, 2004, between Seller and its Material Subsidiaries and Bank of America, N.A., as amended, has not been effected releasing the Companies as guarantors thereunder, and releasing the Companies of all liabilities and obligations thereunder.

Break-Up Fee. (a) If on In the Final Termination Date event that (as extended, as the case may be in accordance with Section 9.1(d)i) Buyer is unable or unwilling to consummate the transactions contemplated by Parent terminates this Agreement after Sellerspursuant to Section 7.1(a) or Section 7.1(c) where the failure of the Closing to occur by the Long Stop Date is due to material breach of this Agreement by any Warrantor, or (ii) (x) all of the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject to Section 9.4(b), the closing conditions set forth in Section 7.1 6.1 and Section 6.3 (other than those conditions that by their nature are to be satisfied by actions taken at the condition Closing) have been satisfied, (y) the Parent has delivered to the Company an irrevocable written notice confirming that all of the conditions set forth in Section 7.1(h))6.2 have been satisfied (or that Parent is waiving any unsatisfied conditions in Section 6.2) and that it is ready, willing and Sellers exercise their right able to terminate consummate the Closing and (z) the Company fails to complete the Closing within ten (10) Business Days following the later of (A) date on which the Closing should have occurred pursuant to Section 2.3 and (B) the date on which the foregoing notice is delivered to the Company, the Company shall promptly (and in any event within five (5) Business Days after the termination of this Agreement) pay, Buyer shall pay or cause to be paid to, Parent a fee equal to three (3%) of the Company a break-up fee in the additional amount of $500,000 (the “Break-Up Fee”).Preliminary Merger Consideration; (b) Solely for purposes In the event that (i) the Company terminates this Agreement pursuant to Section 7.1(b) or Section 7.1(d) where the failure of determining whether Sellers have satisfied their closing the Closing to occur by the Long Stop Date is due to material breach of this Agreement by any Parent Party, or (ii) (x) all of the conditions and are eligible to receive the Break-Up Fee, the following condition shall replace the condition set forth in Section 7.1(a): “All representations 6.1 and warranties Section 6.2 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied, (y) the Company has delivered to Parent an irrevocable written notice confirming that all of the Sellers in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties conditions set forth in Section 6.3 have been satisfied (or that the Company is waiving any Schedule Supplementunsatisfied conditions in Section 6.3) and that it is ready, (i) which are not qualified as willing and able to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, consummate the Closing and (iiz) Parent Parties fail to complete the Closing within ten (10) Business Days following the later of (A) date on which are qualified as the Closing should have occurred pursuant to “materiality” Section 2.3 and (B) the date on which the foregoing notice is delivered to Parent, Parent shall promptly (and in any event within five (5) Business Days after the termination of this Agreement) pay, or “lack of Material Adverse Effect”cause to be paid to, shall be true and correct in all respects, after giving effect the Company a fee equal to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as three (3%) of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.”Preliminary Merger Consideration; and (c) The Break-Up Fee represents If either the parties’ estimate of damages Group Companies or the Founder Parties on the one hand, or Parent on the other hand, fails to Sellers pay any amounts due to the other Party under this Section 7.4, then the defaulting Party shall pay all reasonable and documented costs and expenses (including but not limited to legal fees and expenses) incurred by such other Party in connection with such termination and shall be liquidated damages and any action or proceeding (including but not a penalty. Any payment limited to the Sellers filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest accrued on such unpaid amounts from the date on which such payment became due through the date on which all the amounts due and payable under this Section 9.4 shall be by wire transfer of immediately available funds to an account(s) designated 7.4 by the Sellersdefaulting Party were fully received by such other Party at the prime lending rate as published in The Wall Street Journal in effect on the date such payment became due. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder.

Break-Up Fee. In the event that the Closing does not occur due to: (a) If any direct or indirect conduct by or on the Final Termination Date (as extended, as the case may be in accordance with Section 9.1(d)) behalf of any Debtor to preclude Buyer is unable or unwilling from being able to consummate the transactions contemplated by fulfill its obligations under this Agreement after Sellersor the Consulting Agreement; or (b) this Agreement not being approved by the Bankruptcy Court (i) because of an offer from, or a sale or transfer to some other person or entity of all or a substantial portion of any of the Company, as the case may be, has satisfiedCompany Shares, or is willing and able all or a substantial portion of the assets of any of the Debtors, or, in respect of any merger, consolidation or other sale of any Debtor or (ii) because any of the Debtors seeks to satisfy, subject to Section 9.4(b), obtain confirmation of a plan of reorganization in contravention of the closing conditions set forth in Section 7.1 (other than the condition set forth in Section 7.1(h)), and Sellers exercise their right to terminate terms of this Agreement, and provided that Buyer shall pay has fully performed the obligations that it was to perform prior to Closing, the Principal Shareholders and the Company shall be jointly and severally obligated to pay to Buyer a break-up fee in the additional amount of Fifteen Million Dollars ($500,000 (15,000,000), with the “Break-Up Fee”). (b) Solely for purposes exception that if the Closing does not occur due to the marketing of determining whether Sellers have satisfied their closing conditions and are eligible to receive any Debtor in contravention of the Break-Up FeeAgreement by the Principal Shareholders, the following condition Company or its subsidiaries during the term of this Agreement, the Principal Shareholders and the Company shall replace be jointly and severally obligated to pay to Buyer a break-up fee in the condition set forth in Section 7.1(a): “All representations and warranties amount of Twenty-Five Million Dollars ($25,000,000). This provision shall survive the Termination of the Sellers Agreement. In the event that the Closing does not occur due to Buyer's unjustified refusal to close and provided that the Company has fully performed the obligations that it was to perform prior to Closing, Buyer shall pay to the Company in this Agreement and cash the Related Documents, disregarding amount by which the consideration that a purchaser pays for this purpose any modifications to the stock or assets of the Company is less than $250,000,000 but such representations and warranties set forth in any Schedule Supplement, payment shall not exceed $15,000,000. In the event that either (i) which are not qualified as to “materiality” Buyer without cause terminates the Consulting Agreement or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack the Company terminates the Consulting Agreement with cause, and Buyer thereafter terminates this Agreement based solely upon the termination of Material Adverse Effect”the Consulting Agreement, then no break-up fee shall be true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warrantiespayable.” (c) The Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be by wire transfer of immediately available funds to an account(s) designated by the Sellers.

Break-Up Fee. (a) If on Notwithstanding the Final Termination Date provisions above, other than with respect to the failure of the SEC to provide to the Parent its notice of no further comments to the Form S-4/Proxy Statement and declare effective the Form S-4, in the event that (i) the Closing does not take place by the Outside Date, or a later date as extendedextended by the Parent under its Amended and Restated Certificate of Incorporation, as due to any material delay caused by or any reason directly attributable to the case may be in accordance with Section 9.1(d)Company or any of the Company Subsidiaries or Shareholders’ Representative, (ii) Buyer the Company does not obtain the Requisite Approval, or (iii) there is unable or unwilling to consummate the transactions contemplated by a valid and effective termination of this Agreement after Sellers, or by the Company, as the case may be, has satisfied, or is willing and able to satisfy, subject Parent pursuant to Section 9.4(b11.1(f), but only if and to the closing conditions set forth in Section 7.1 (other than extent the condition set forth in Section 7.1(h))breach triggering such termination does or would constitute a Company Material Adverse Event, and Sellers exercise their right to terminate this Agreement, Buyer then the Company shall pay to the Company Parent a break-up fee in the additional amount of cash equal to Three Million Dollars ($500,000 (3,000,000) ( the “Break-Up Fee”). (b) Solely for purposes of determining whether Sellers have satisfied their closing conditions and are eligible to receive the Break-Up Fee, the following condition shall replace the condition set forth in Section 7.1(a): “All representations and warranties of the Sellers in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack of Material Adverse Effect”, shall be true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.” (c) . The Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages and not a penalty. Any payment to the Sellers under this Section 9.4 shall be paid by wire transfer of immediately available funds to an account(s) account designated in writing by the SellersParent within five (5) Business Days after the Parent delivers to the Company written notice of such termination in accordance with this Agreement. (b) Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that, with respect to any termination of this Agreement in circumstances where a Break-Up Fee is payable under this Section 11.4, the payment of such Break-Up Fee shall, in light of the difficulty of accurately determining actual damages, constitute liquidated damages with respect to any claim for damages or any other claim which the Parent or its Affiliates would otherwise be entitled to assert against the Company, Shareholders’ Representative or their Affiliates or any of their respective assets, or against any of their respective directors, officers, employees or shareholders with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to the Parent or its Affiliates, provided, that the foregoing shall not limit (A) the Company, Shareholders’ Representative or their Affiliates from Liability for any fraud claim relating to events occurring prior to termination of this Agreement or (B) the rights of the Parent to seek specific performance or other injunctive relief in lieu of terminating this Agreement.

Break-Up Fee. (a) If on the Final Termination Date (as extendedSubject to Section 12.05(c), as the case may be in accordance with Section 9.1(d)) if Buyer is unable or unwilling to consummate the transactions contemplated by terminates this Agreement after Sellers, pursuant to: (i) Section 12.01(b) under circumstances where the failure of the Closing to occur on or prior to the Company, as Outside Date is directly caused by or results from the case may be, has satisfied, breach or failure of Seller to perform its obligations under this Agreement in any material respect; (ii) Section 12.01(c) under circumstances where the Governmental Order that is willing and able the subject of Section 12.01(c) is directly caused by or results from the breach or failure of Seller to satisfy, subject to perform its obligations under this Agreement in any material respect; or (iii) Section 9.4(b12.01(d), the closing conditions set forth in Section 7.1 (other than the condition set forth in Section 7.1(h)), and Sellers exercise their right to terminate this Agreement, Buyer then Seller shall pay to Buyer the Company a break-up fee in the additional amount of $500,000 (the “Break-Up Fee”). (b) Solely for purposes of determining whether Sellers have satisfied their closing conditions and are eligible If Seller terminates this Agreement pursuant to receive Section 12.01(h), then Seller shall pay to Buyer the Break-Up Fee, the following condition shall replace the condition set forth in Section 7.1(a): “All representations and warranties of the Sellers in this Agreement and the Related Documents, disregarding for this purpose any modifications to such representations and warranties set forth in any Schedule Supplement, (i) which are not qualified as to “materiality” or lack of Material Adverse Effect, shall be true and complete in all material respects, and (ii) which are qualified as to “materiality” or “lack of Material Adverse Effect”, shall be true and correct in all respects, after giving effect to such qualifications or “materiality” as to lack of Material Adverse Effect, in each case at and as of the Closing Date as though such representations and warranties were made at and as of such time, except for representations and warranties that speak as of a specific date or time, which need only be true and correct as of such date and time, except to the extent such failures of such representations and warranties to be true and complete in all material respects (or in all respects, in the case of clause (ii) above, after giving effect to the applicable qualifications) would reasonably be expected to result in Damages to Buyer of less than $300,000, in the case of an individual breach of a representation or warranty, or $500,000 in the aggregate for all such breaches of representations and warranties.” (c) The If (i) Seller, the Rehabilitator or any Acquired Company receives an Alternate Proposal that is superior in any material respect to the proposal effected under this Agreement or offers consideration materially in excess of the Purchase Price payable hereunder (a “Superior Proposal”) prior to termination of this Agreement, (ii) (A) Buyer or Seller terminates this Agreement pursuant to Section 12.01(c) where the Governmental Order that is the subject of Section 12.01(c) does not directly result from the breach or failure of Buyer to perform its obligations under this Agreement in any material respect, or (B) Buyer or Seller terminates this Agreement pursuant to Section 12.01(b) under circumstances where the failure of the Closing to occur on or prior to the Outside Date does not directly result from the breach or failure of Buyer to perform its obligations under this Agreement in any material respect, then notwithstanding anything herein to the contrary, (x) no Reverse Break-Up Fee represents the parties’ estimate of damages to Sellers in connection with such termination and shall be liquidated damages due and payable under Section 12.05(c) and (y) if Seller, its Affiliates, the Rehabilitator or any Acquired Company consummates such Superior Proposal, or any other Superior Proposal made by the Alternate Bidder that originally made such Superior Proposal, or any of its Affiliates, within eighteen (18) months after termination of this Agreement, then Seller shall pay to Buyer the Break-Up Fee. For the avoidance of doubt, if either party terminates this Agreement at a time when such party has grounds to terminate this Agreement that would result in payment of a Break-Up Fee, and at such time, Seller has alternate grounds to terminate this Agreement that would not result in payment of a penalty. Any payment to the Sellers Break-Up Fee under this Section 9.4 12.04, then no Break-Up Fee shall be by wire transfer of immediately available funds to an account(s) designated by the Sellerspayable under this Section 12.04.