Common use of Termination Fee and Expense Reimbursement Clause in Contracts

Termination Fee and Expense Reimbursement. (a) In the event that (i) the Court enters a final order authorizing any Seller to sell or otherwise transfer (A) all or any substantial or material portion of the Acquired Assets or (B) the GDC China Subsidiary and all or any portion of the Acquired Assets, as part of a sale approved pursuant to the Section 363 sale process contemplated by this Agreement or otherwise to any Person other than Buyer, (ii) Sellers pursue a “stand-alone” restructuring or similar effort that does not involve a sale of all or any substantial or material portion of the Acquired Assets or (iii) the Court enters a final order confirming a Chapter 11 Plan of Reorganization for one or more Sellers that does not involve a sale of all or any substantial or material portion of the Acquired Assets or that involves a sale of all or any substantial or material portion of the Acquired Assets other than to Buyer, then Sellers shall pay to Buyer, on the earliest of the entry of an order described in clause (i), the determination by Sellers to pursue a “stand-alone” restructuring or similar effort described in clause (ii) or the entry of an order as described in clause (iii), $750,000 (the “Termination Fee”). The Termination Fee provided for by this Section 4.11(a) is intended to cover opportunity costs incurred by Buyer in pursuing and negotiating this Agreement and the transactions contemplated hereby, and is considered by the Parties to be reasonable for such purposes. The claims of Buyer to the Termination Fee shall constitute a first priority administrative expense against Sellers’ bankruptcy estates, jointly and severally, under 11 U.S.C. § 507(a)(1). (b) In addition to any Termination Fee that may be payable pursuant to Section 4.11(a), upon (i) any event in which the Termination Fee is payable pursuant to Section 4.11(a) or (ii) termination of this Agreement by (x) Sellers pursuant to Section 7.1(e) (unless the failure of any condition precedent results primarily from a breach by Buyer of any representation, warranty or covenant contained in this Agreement), or (y) Buyer pursuant to Section 7.1(b), 7.1(d), 7.1(g) or 7.1(h), Sellers shall reimburse up to $500,000 of the actual and documented out-of-pocket fees and expenses incurred by Buyer, if any, and its Affiliates, in connection with this Agreement and the transactions contemplated hereby, whether incurred before, on or after the Filing Date (the “Expense Reimbursement”). The claims of Buyer to the Expense Reimbursement shall constitute a first priority administrative expense against Sellers’ bankruptcy estates, jointly and severally, under 11 U.S.C. § 507(a)(1).

Termination Fee and Expense Reimbursement. (a) In the event that (i) the Court enters a final order authorizing any Seller to sell or otherwise transfer (A) all or any substantial or material portion of the Acquired Assets or (B) the GDC China Subsidiary and all or any portion of the Acquired Assets, as part of a sale approved pursuant to the Section 363 sale process contemplated by this Agreement or otherwise to any Person other than Buyer, (ii) Sellers pursue a “stand-alone” restructuring or similar effort that does not involve a sale of all or any substantial or material portion of the Acquired Assets or (iii) the Court enters a final order confirming a Chapter 11 Plan of Reorganization for one or more Sellers that does not involve a sale of all or any substantial or material portion of the Acquired Assets or that involves a sale of all or any substantial or material portion of the Acquired Assets other than to Buyer, then Sellers shall pay to Buyer, on the earliest of the entry of an order described in clause (i), the determination by Sellers to pursue a “stand-alone” restructuring or similar effort described in clause (ii) or the entry of an order as described in clause (iii), $750,000 (the “Termination Fee”). The Termination Fee provided for by this Section 4.11(a) is intended to cover opportunity costs incurred by Buyer in pursuing and negotiating this Agreement and the transactions contemplated hereby, and is considered by the Parties to be reasonable for such purposes. The claims of Buyer to the Termination Fee shall constitute a first priority administrative expense against Sellers’ bankruptcy estates, jointly and severally, under 11 U.S.C. § 507(a)(1). (b) In addition to any Termination Fee that may be payable pursuant to Section 4.11(a), upon (i) any event in which the Termination Fee is payable pursuant to Section 4.11(a) or (ii) termination of this Agreement by (x) Sellers pursuant to Section 7.1(e) (unless the failure of any condition precedent results primarily from a breach by Buyer of any representation, warranty or covenant contained in this Agreement), or (y) Buyer pursuant to Section 7.1(b), 7.1(d(d), 7.1(g(f), (g) or 7.1(h), (h) Sellers shall reimburse up to $500,000 of the actual and documented out-of-pocket fees and expenses incurred by Buyer, if any, and its Affiliates, in connection with this Agreement and the transactions contemplated hereby, whether incurred before, on or after the Filing Date (the “Expense Reimbursement”). The claims of Buyer to the Expense Reimbursement shall constitute a first priority administrative expense against Sellers’ bankruptcy estates, jointly and severally, under 11 U.S.C. § 507(a)(1).