Common use of Effect of Termination; Termination Fee Clause in Contracts

Effect of Termination; Termination Fee. (a) In the event this Agreement is terminated pursuant to Section 11.1, all further obligations of the parties hereunder shall terminate, except for the obligations set forth in Article X and in Sections 11.2(b), 12.3, 12.4, and 12.8, and except that nothing in this Section 11.2 shall relieve any party hereto of any liability for breach of any of the covenants or any of the representations or warranties contained in this Agreement prior to such termination. (b) If (i) this Agreement is terminated pursuant to Section 11.1(e), and (ii) a Business Combination shall occur within eighteen months after the date this Agreement is terminated, then the Seller shall immediately, upon consummation of such Business Combination, pay to the Purchaser in same day funds all reasonable, documented attorneys', accountants', consultants' and other out-of-pocket expenses incurred by Purchaser in connection with the transactions contemplated by this Agreement. For purposes of this Agreement, the term "Business Combination" means any of the following events: (i) the Company, directly or indirectly, is acquired by merger or otherwise by any person or group, including, without limitation, any officer or director or any group which includes such officer or director as a member (a "Third Party"); (ii) the Company or the Seller enters into an agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the total assets of the Company; (iii) the Company or the Seller enters into a stock purchase, subscription, merger, consolidation, share exchange or other agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the outstanding shares of the Company's capital stock; (iv) a Third Party directly or indirectly acquires 30% or more of the total assets of the Company; (v) a Third Party directly or indirectly acquires 30% or more of the outstanding shares of the Company's capital stock; or (vi) the Company or the Seller adopts a plan of liquidation relating to 30% or more of the total assets of the Company.

Effect of Termination; Termination Fee. (a) In Except as set forth in this Section 8.5, in the event of termination of this Agreement by either Parent or the Company as provided in this Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to Section 6.6 and the payment of expenses pursuant to Section 9.1 and (y) to the extent that such termination results from the breach of a Party of any of its representations or warranties, or any of its covenants or agreements, in each case, as set forth in this Agreement. (b) If this Agreement shall be terminated pursuant to Section 8.3(c) or 8.4(c), then, provided that Parent is not then in material breach of the terms of this Agreement, the Company shall pay to Parent the aggregate sum of $12,000,000 (the "Termination Fee"). If this Agreement is terminated pursuant to Section 11.1, all further obligations 8.2(c) as a result of the parties hereunder failure to obtain the Requisite Stockholder Approval and at the time of such termination an Acquisition Proposal by any third party shall terminate, except for the obligations set forth in Article X and in Sections 11.2(b), 12.3, 12.4have been announced, and 12.8if the Company, and except that nothing in this Section 11.2 shall relieve any party hereto of any liability for breach of any of the covenants or any of the representations or warranties contained in this Agreement prior to within twelve (12) months after such termination. (b) If (i) , enters into a definitive agreement with such third party with respect to an Acquisition Proposal, then the Company shall pay to Parent the Termination Fee concurrently with entering into such agreement. In addition, if this Agreement is terminated pursuant to Section 11.1(e)8.2(c) as a result of the failure to obtain the Requisite Stockholder Approval, and within six (ii6) a Business Combination shall occur within eighteen months after such termination the date Company or any of its subsidiaries enters into a definitive agreement for the consummation of an Acquisition Proposal with A-41 47 (c) Any payment required to be made pursuant to Section 8.5(b) shall be made as promptly as practicable but not later than three (3) business days after written notice of termination of this Agreement is terminatedreceived by the party obligated to make such payment and shall be made by wire transfer of immediately available funds to an account designated by the party so owed. (d) Each of the Parties agrees that the payment in full of the Termination Fee shall be the exclusive remedy for any action which results in the payment of the Termination Fee to Parent, then unless the Seller shall immediatelytermination of this Agreement results from the breach by a Party of any of its representations, upon consummation of such Business Combinationwarranties, pay to the Purchaser covenants or agreements set forth in same day funds all reasonable, documented attorneys', accountants', consultants' and other out-of-pocket expenses incurred by Purchaser in connection with the transactions contemplated by this Agreement. For purposes of this Agreement, in which event the term "Business Combination" means any of non-breaching Party shall have all rights, powers and remedies against the following events: (i) the Companybreaching Party which may be available at law or in equity. All rights, directly or indirectly, is acquired by merger powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any person Party shall not preclude the simultaneous or grouplater exercise of any other such right, including, without limitation, any officer power or director or any group which includes remedy by such officer or director as a member (a "Third Party"); (ii) the Company or the Seller enters into an agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the total assets of the Company; (iii) the Company or the Seller enters into a stock purchase, subscription, merger, consolidation, share exchange or other agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the outstanding shares of the Company's capital stock; (iv) a Third Party directly or indirectly acquires 30% or more of the total assets of the Company; (v) a Third Party directly or indirectly acquires 30% or more of the outstanding shares of the Company's capital stock; or (vi) the Company or the Seller adopts a plan of liquidation relating to 30% or more of the total assets of the Company.. ARTICLE IX MISCELLANEOUS AND GENERAL 9.1

Effect of Termination; Termination Fee. (a) In the event this Agreement is terminated pursuant to Section 11.1, all further obligations of the parties hereunder shall terminate, except for the obligations set forth in Article X and in Sections 11.2(b), 12.3, 12.4, and 12.8, and except that nothing in this Section 11.2 shall relieve any party hereto of any liability for breach of any of the covenants or any of the representations or warranties contained in this Agreement prior to such termination. (b) If (i) this Agreement is terminated pursuant to Section 11.1(e), and (ii) a Business Combination shall occur within eighteen months after the date this Agreement is terminated, then the Seller shall immediately, upon consummation of such Business Combination, pay to the Purchaser in same day funds all reasonable, documented attorneys', accountants', consultants' and other out-of-pocket expenses incurred by Purchaser in connection with the transactions contemplated by this Agreement. For purposes of this Agreement, the term "Business CombinationBUSINESS COMBINATION" means any of the following events: (i) the Company, directly or indirectly, is acquired by merger or otherwise by any person or group, including, without limitation, any officer or director or any group which includes such officer or director as a member (a "Third THIRD Party"); (ii) the Company or the Seller enters into an agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the total assets of the Company; (iii) the Company or the Seller enters into a stock purchase, subscription, merger, consolidation, share exchange or other agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the outstanding shares of the Company's capital stock; (iv) a Third Party directly or indirectly acquires 30% or more of the total assets of the Company; (v) a Third Party directly or indirectly acquires 30% or more of the outstanding shares of the Company's capital stock; or (vi) the Company or the Seller adopts a plan of liquidation relating to 30% or more of the total assets of the Company.

Effect of Termination; Termination Fee. (a) In the event this Agreement is terminated pursuant to Section 11.1, all further obligations of the parties hereunder shall terminate, except for the obligations set forth in Article X and in Sections 11.2(b), 12.3, 12.4, 12.5, and 12.812.9, and except that nothing in this Section 11.2 shall relieve any party hereto of any liability for breach of any of the covenants or any of the representations or warranties contained in this Agreement prior to such termination. (b) If (i) this Agreement is terminated pursuant to Section 11.1(e), and (ii) a Business Combination shall occur within eighteen months after the date this Agreement is terminated, then the Seller shall immediately, upon consummation of such Business Combination, pay to the Purchaser in same day funds the sum of $500,000 plus all reasonable, documented attorneys', accountants', consultants' and other out-of-pocket expenses incurred by Purchaser in connection with the transactions contemplated by this Agreement. For purposes of this Agreement, the term "Business Combination" means any of the following events: (i) the Company, directly or indirectly, is acquired by merger or otherwise by any person or group, including, without limitation, any officer or director or any group which includes such officer or director as a member (a "Third Party"); (ii) the Company or the Seller enters into an agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the total assets of the Company; (iii) the Company or the Seller enters into a stock purchase, subscription, merger, consolidation, share exchange or other agreement with a Third Party which contemplates the acquisition, directly or indirectly, of 30% or more of the outstanding shares of the Company's capital stock; (iv) a Third Party directly or indirectly acquires 30% or more of the total assets of the Company; (v) a Third Party directly or indirectly acquires 30% or more of the outstanding shares of the Company's capital stock; or (vi) the Company or the Seller adopts a plan of liquidation relating to 30% or more of the total assets of the Company.