Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. In the event that Buyer ------------ ------------ shall announce the execution of this Agreement prior to the consummation of the Merger, then, in the event that the Merger is not consummated prior to 5:00 p.m. Eastern Standard Time on the later to occur of (i) the seventh day after the execution of this Agreement or (ii) the day on which all of the Company's and the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer acted or failed to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash (the "Break-up Fee"), provided, however, that the Company shall ------------------ immediately return the Break-up Fee to Buyer in the event that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full of the conditions to the Buyer's obligations set forth in Section 9.02 and the filing of the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.02, the preceding 7-day period shall be suspended and Buyer shall have no obligation to pay the Break-up Fee to the Company pending the Secretary of State's review and approval of the Merger, for so long as the parties are engaged in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall promptly pay the Break-up Fee to the Company.

Break-Up Fee. In Notwithstanding the event that Buyer ------------ ------------ shall announce the execution provisions of this Agreement prior to the consummation of the Merger, thenSection 11.2, in the event that the Merger is not consummated prior (a) Seller terminates this Agreement pursuant to 5:00 p.m. Eastern Standard Time on the later to occur clause (i) of Section 11.1(c) under circumstances where (i) the seventh day after failure to satisfy, comply with or perform any of the execution 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 day failure to satisfy, comply with or perform such condition is or would reasonably be expected to have a material adverse effect on which all the assets, business, results of operations or condition (financial or otherwise) of Seller and its subsidiaries, taken as a whole, upon or after the Company's 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 Shareholders' Closing (subject to any required performance by Buyer in order to satisfy any of conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 9) but Buyer fails to effect the Closing for any reason (or for no reason), (c) Buyer terminates this Agreement pursuant to Section 11.1(b) in circumstances where (i) Buyer has not consummated the transactions contemplated by this Agreement as a result of the conditions set forth in Section 8 above not having been satisfied, complied with or performed (and such failure of satisfaction, compliance or performance is not the result, directly or indirectly, of any breach of this Agreement are satisfied in full (assuming for purposes on the part of this clause Buyer), and (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer acted failure to satisfy, comply with or failed to act with the intention of causing perform such failure of satisfaction)conditions, Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash (the "Break-up Fee"), provided, however, that the Company shall ------------------ immediately return the Break-up Fee to Buyer in the event that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full Closing and operation of the conditions Business following the Closing without satisfaction, compliance with or performance of such conditions, has not had and would not reasonably be expected to have, individually or in the Buyer's obligations set forth in Section 9.02 and the filing of the aggregate, a Material Adverse Effect, or (d) Buyer terminates this Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.0211.1(e), then Buyer shall pay to Seller, by wire transfer of immediately available funds, the preceding 7-day period sum of $2,000,000 (the “Break Up Fee”) promptly after the date of the event giving rise to such payment obligation, which payment shall constitute liquidated damages and shall be suspended Seller’s sole and Buyer shall have no obligation to pay the Break-up Fee exclusive remedy for any such termination. Notwithstanding anything to the Company pending contrary in clauses (b) 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 Secretary time of State's review termination of this Agreement, either (A) the applicable waiting period under the HSR Act has not expired without governmental action and approval same is not the result of the Merger, for so long as the parties are engaged in any failure by Buyer to use commercially reasonable efforts to pursue and obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such effortsHSR Act clearance, Individual shall promptly pay the Break-up Fee or (B) a consent under or amendment to the CompanyCredit 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) In recognition of the event that efforts, expenses and other opportunities foregone by Buyer ------------ ------------ shall announce the execution of this Agreement prior to the consummation of while structuring and pursuing the Merger, thenCompany shall pay to Buyer a break-up fee equal to $560,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account 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 Merger is not consummated date of this Agreement and prior to 5:00 p.m. Eastern Standard Time 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 later 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 occur “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 seventh day after rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the execution 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 (ii) the day on which all of the Company's transactions contemplated by this Agreement and the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 payment of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer acted or failed to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash (the "Break-up Fee"), provided, however, that the Company shall ------------------ immediately return the Break-up Fee to Buyer in the event that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full of the conditions to the Buyer's obligations set forth in Section 9.02 and the filing of the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.02, the preceding 7-day period amounts shall be suspended Buyer’s sole and Buyer shall have no obligation to pay the Break-up Fee to the exclusive remedy against Company, Company pending the Secretary of State's review Bank, and approval of the Mergertheir respective Affiliates, for so long as the parties are engaged Representatives or successors in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall promptly pay the Break-up Fee to the Companyinterest.

Break-Up Fee. In the event that Buyer ------------ ------------ shall announce the execution of this Agreement prior Court enters an order authorizing Seller to the consummation of the Merger, then, in the event that the Merger is not consummated prior to 5:00 p.m. Eastern Standard Time on the later to occur of (i) the seventh day after the execution of this Agreement or (ii) the day on which sell substantially all of the Company's Business (through a sale of assets, sale of stock, merger or otherwise) to a third party pursuant to an offer made in response to notice of the motion for the Sale Order ("Alternative Transaction"), and the Shareholders' conditions to provided this Agreement has not been terminated because of a material breach of Buyer's obligation obligations, representations or warranties hereunder, and provided neither Buyer nor any other person or entity controlled by Buyer has appealed the order of the Court approving the Alternative Transaction, and subject to consummate the Merger set forth in Section 9.02 further provisions of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Section 9.5, Seller will pay to Buyer acted or failed to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two One Hundred Thousand dollars Dollars ($200,000100,000.00) cash (the "Break-up Fee"), provided, however, that plus Buyer's aggregate actual and reasonable out-of-pocket expenses incurred in connection with this Agreement including without limitation Buyer's attorney's fees and costs incurred in connection with this Agreement and the Company shall ------------------ immediately return the Loan Agreement (not to exceed an additional Fifty Thousand Dollars ($50,000.00) ("Buyer's Expenses")). The Break-up Fee to Buyer will become due in immediately available funds upon, but will only become due in the event that of, the Merger is consummated earlier to occur (if either) of (a) closing of an Alternative Transaction, or (b) failure of Seller to offer irrevocably to Buyer the Assets pursuant to order of the Court and on or before June 30the terms of this Agreement, 1997 or both parties agree in writing as improved to continue negotiations Seller by Buyer (if at all) at the hearing on the motion for the consummation Sale Order, within ten (10) days after entry of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full order of the conditions Court approving the Alternative Transaction (or, in the event such order is stayed pending appeal, within the earlier of twenty (20) days after entry of such order or ten (10) days after lifting of such stay), subject only to Buyer closing such purchase of Assets within ten (10) days after such offer (or, if applicable, after the Buyer's obligations set forth in Section 9.02 lifting of such stay). Buyer will submit a summary of out-of-pocket expenses and attorneys fees to Seller for payment. Buyer and Seller shall submit the filing of expenses for the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.02, the preceding 7-day period shall be suspended and Buyer shall have no obligation to pay the Break-up Fee to the Company pending the Secretary of State's review and approval of the MergerCourt, for so long as only in the parties are engaged in efforts to obtain event of a dispute of Buyer and Seller over the reasonableness of such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall promptly pay the Break-up Fee to the Companyexpenses.

Break-Up Fee. (a) In recognition of the efforts, expenses and other opportunities foregone by Buyer while structuring and pursuing the Merger, Company shall pay to Buyer a break-up fee equal to $615,000 (“Break-Up Fee”), by wire transfer of immediately available funds to an account specified by Buyer in the event that of any of the following: (i) Buyer ------------ ------------ terminates this Agreement pursuant to Section 8.01(g) or Company terminates this Agreement pursuant to Section 8.01(h), Company shall announce pay Buyer the execution Break-Up Fee within two (2) Business Days after receipt of Buyer’s notification of such termination; and (ii) after the date of this Agreement and prior to the termination of this Agreement (or prior to the Company Meeting in the case of a termination pursuant to Section 8.01(c), 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 8.01(c) or Section 8.01(f) (without the Requisite Company Shareholder Approval having been obtained) or if this Agreement is terminated by Buyer pursuant to Section 8.01(e) as a result of willful and intentional 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 or the date of consummation of such transaction, pay Buyer the MergerBreak-Up Fee, thenprovided, that for purposes of this Section 8.02(a), all references in the event definition of Acquisition Transaction to “15%” shall instead refer to “50%”. (b) Company and Buyer each agree that the Merger is agreements contained in this Section 8.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Buyer would not consummated prior enter into this Agreement; accordingly, if Company fails promptly to 5:00 p.m. Eastern Standard Time pay any amounts due under this Section 8.02, Company shall pay interest on such amounts from the later date payment of such amounts were due to occur the date of actual payment at the rate of interest equal to the sum of (i) the seventh day after rate of interest published from time to time in The Wall Street Journal, Eastern Edition (or any successor publication thereto), designated therein as the execution prime rate on the date such payment was due, plus (ii) 200 basis points, together with the costs and expenses of Buyer (including legal fees and expenses) reasonably incurred in connection with such suit to enforce such payment. (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 the Break-Up Fee in accordance with Section 8.02(a), neither Company nor Bank (nor any successor in interest, Affiliate, shareholder, director, officer, employee, agent, consultant or representative of Company or Bank) will have any further obligations or liabilities to Buyer with respect to this Agreement or (ii) the day on which all of the Company's {Clients/1521/00383953.DOCX/7 }62 transactions contemplated by this Agreement and the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 payment of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer acted or failed to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash (the "Break-up Fee"), provided, however, that the Company shall ------------------ immediately return the Break-up Fee to Buyer in the event that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full of the conditions to the Buyer's obligations set forth in Section 9.02 and the filing of the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.02, the preceding 7-day period amounts shall be suspended Buyer’s sole and Buyer shall have no obligation to pay the Break-up Fee to the Company pending the Secretary of State's review exclusive remedy against Company, Bank, and approval of the Mergertheir respective Affiliates, for so long as the parties are engaged Representatives or successors in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall promptly pay the Break-up Fee to the Companyinterest.

Break-Up Fee. (a) In the event that Buyer ------------ ------------ shall announce (i) Parent terminates this Agreement pursuant to Section 7.1(a) or Section 7.1(c) where the execution failure of the Closing to occur by the Long Stop Date is due to material breach of this Agreement prior by any Warrantor, or (ii) (x) all of the conditions set forth in Section 6.1 and Section 6.3 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied, (y) the Parent has delivered to the consummation Company an irrevocable written notice confirming that all of the Mergerconditions set forth in Section 6.2 have been satisfied (or that Parent is waiving any unsatisfied conditions in Section 6.2) and that it is ready, thenwilling and able to 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, or cause to be paid to, Parent a fee equal to three (3%) of the Preliminary Merger Consideration; (b) In the event that the Merger is not consummated prior to 5:00 p.m. Eastern Standard Time on the later to occur of (i) the seventh day after Company terminates this Agreement pursuant to Section 7.1(b) or Section 7.1(d) where the execution failure of the Closing to occur by the Long Stop Date is due to material breach of this Agreement by any Parent Party, or (ii) the day on which (x) all of the Company's and the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 of this Agreement 6.1 and Section 6.2 (other than those conditions that by their nature are to be satisfied in full by actions taken at the Closing) have been satisfied, (assuming for purposes of this clause (iiy) the full satisfaction of any conditions which were not satisfied solely because Buyer acted or failed Company has delivered to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash (the "Break-up Fee"), provided, however, Parent an irrevocable written notice confirming that the Company shall ------------------ immediately return the Break-up Fee to Buyer in the event that the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations for the consummation of the Merger beyond June 30, 1997. Notwithstanding the foregoing, upon the satisfaction in full all of the conditions to the Buyer's obligations set forth in Section 9.02 6.3 have been satisfied (or that the Company is waiving any unsatisfied conditions in Section 6.3) and that it is ready, willing and able to consummate the Closing and (z) Parent Parties fail 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 Parent, Parent shall promptly (and in any event within five (5) Business Days after the termination of this Agreement) pay, or cause to be paid to, the Company a fee equal to three (3%) of the Preliminary Merger Consideration; and (c) If either the Group Companies or the Founder Parties on the one hand, or Parent on the other hand, fails to 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 any action or proceeding (including but not limited to the filing of any lawsuit) taken by it to collect such unpaid amounts, together with interest accrued on such unpaid amounts from the Agreement of Merger with date on which such payment became due through the Secretary of State of date on which all the State of California pursuant to amounts due and payable under this Section 2.02, 7.4 by the preceding 7-day period defaulting 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 be suspended and Buyer shall have no obligation to pay not otherwise diminish in any way the Break-up Fee to the Company pending the Secretary of State's review and approval of the Merger, for so long as the parties are engaged in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall promptly pay the Break-up Fee to the Companypayment obligations hereunder.

Break-Up Fee. In the event that, notwithstanding the execution of this Agreement, (a) The Seller sells, or agrees to sell, or the Bankruptcy Court approves any sale of, all or substantially all of the Assets or any material portion of any of the three (3) principal business segments included in the Business to any person or entity other than 50 the Purchaser or any of its affiliated companies and such sale closes on or prior to December 31, 1999; provided, however, that Buyer ------------ ------------ shall announce if this Agreement terminates by reason of a material breach by the Purchaser of its obligations under this Agreement, the Break-Up Fee (as defined below) will not be payable; or (b) This Agreement is terminated by the Purchaser pursuant to Section 16.1(a)(ii) or by the Seller pursuant to Section 16.1(a)(iii) or if this Agreement terminates pursuant to Section 16.1(b) other than by reason of a material breach by the Purchaser of its obligations under this Agreement; provided, however, that if, prior to or at the time of such termination or within 30 days thereof (provided that the Seller has made a motion to that effect not later than five business days of such termination), the Seller has assumed the Distribution Agreement and such assumption has been approved by the Bankruptcy Court pursuant to an order of the Bankruptcy Court, the Break-Up Fee will not be payable unless a sale described in Section 10.3(a) occurs; or (c) This Agreement is terminated (i) by either the Purchaser or the Seller pursuant to Section 16.1(a)(iv), (ii) by the Purchaser because of a failure to satisfy the condition to close set forth in part 2 of Schedule 12.6 or (iii) by the Seller pursuant to Section 16.1(a)(iii) where the delay in closing results from the failure of the Seller, despite its best efforts, to satisfy the condition set forth in part 2 of Schedule 12.6; provided, however, that if, prior to or at the time of such termination or within 30 days thereof (provided that the Seller has made a motion to that effect not later than five business days of such termination), the Seller has assumed the Distribution Agreement and such assumption has been approved by the Bankruptcy Court pursuant to an order of the Bankruptcy Court, the Break-Up Fee will not be payable unless a sale described in Section 10.3(a) occurs. then, following any such event, the Seller promptly will pay to the Purchaser a fee (the "BreakUp Fee") equal to the sum of (i) three percent (3%) of the Purchase Price (as set forth in Section 2.1, but not subject to any of the adjustments provided for in Sections 2.1(c) and 2.5-2.7), and (ii) all of the reasonable out-of-pocket expenses (including, but not limited to, attorneys' and accountants' fees) incurred by the Purchaser (whether prior or subsequent to the execution of this Agreement prior to the consummation of the Merger, then, in the event that the Merger is but not consummated prior to 5:00 p.m. Eastern Standard Time on the later to occur of (i) the seventh day after the execution submission of a bid referred to in Section 10.1(a)(ii)(2)) in connection with the transactions contemplated by this Agreement or (ii) the day on which all up to a maximum of the Company's and the Shareholders' conditions to Buyer's obligation to consummate the Merger set forth in Section 9.02 of this Agreement are satisfied in full (assuming for purposes of this clause (ii) the full satisfaction of any conditions which were not satisfied solely because Buyer acted or failed to act with the intention of causing such failure of satisfaction), Buyer shall immediately pay the Company the sum of Two Hundred Thousand dollars ($200,000) cash 250,000 (the "Break-up FeeExpenses"), ; provided, however, that in the Company shall ------------------ immediately return case of an event described in Section 10.3(c) and if the proviso to Section 10.3(c) has been satisfied, the Break-up Up Fee will instead be equal to Buyer in the event that sum of (A) three percent (3%) of the Merger is consummated on or before June 30, 1997 or both parties agree in writing to continue negotiations amount actually received by the Seller for the consummation of Assets or any portions thereof sold in one or more transactions prior to December 31, 1999, which amount shall be paid to the Merger beyond June 30, 1997. Notwithstanding the foregoing, Seller promptly upon the satisfaction in full Seller's receipt of such amount and (B) the conditions to the Buyer's obligations set forth in Section 9.02 and the filing of the Agreement of Merger with the Secretary of State of the State of California pursuant to Section 2.02, the preceding 7-day period shall be suspended and Buyer shall have no obligation to pay the Break-up Fee to the Company pending the Secretary of State's review and approval of the Merger, for so long as the parties are engaged in efforts to obtain such approval. If the Secretary of State's approval is not so obtained and the Merger does not become effective due to Individual's failure to proceed with such efforts, Individual shall promptly pay the Break-up Fee to the CompanyExpenses.