Common use of Effect of Termination and Abandonment Clause in Contracts

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in this Section 10.18.5 and Sections 5.3(c), 6.13 and Article IX) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of any representation, warranty, covenant or agreement contained in this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that (i) this Agreement is terminated: terminated by the Company pursuant to Section 8.3(b) or (iii) an Acquisition Proposal shall have been made to the Company or any of its subsidiaries or any of its stockholders or any person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its subsidiaries and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 9.2(a) or (b8.2(a), if the following shall have occurred: (A8.2(b), 8.4(a), 8.4(b)(i) after the date of this Agreement and prior to the Company Meetingor, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition case of Competing Transaction for purposes a willful breach of this Section 9.5(b)(i)(A)covenant or agreement by the Company, 8.4(b)(ii) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) and within twelve (12) 12 months of such termination of this Agreement, any Acquisition Proposal by a third party is consummated by the Company, then, in the case of (i) or (ii), the Company or any shall pay Parent a termination fee of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate$25,000,000 in same-day funds, or shall have consummated or shall have approved or recommended together with interest accrued thereon at a rate equal to the Company’s stockholders or otherwise not opposedprime rate, a Competing Transaction (substituting 35as announced by Citibank, N.A. from time to time, plus 2% for during the 15% threshold set forth in period commencing on the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by date the Company (A) termination fee is first payable hereunder. The termination fee required to be paid pursuant to Section 9.2(bsubsection (b)(i) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company to Parent no later than: than (xand as a condition to the effectiveness of) two such termination or such later date to which Parent elects to defer payment hereunder. The termination fee required to be paid pursuant to subsection (2b)(ii) Business Days after shall be paid by the first Company to occur Parent not later than concurrently with such consummation of such Acquisition Proposal and such consummation shall be preceded by at least three business days advance notice by the execution of an Alternative Acquisition Agreement Company to Parent. Notwithstanding the foregoing, (other than a confidentiality agreement)A) Parent may elect, approval or recommendation by notice to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or defer the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence payment of the termination event giving rise fee from time to time for a period or periods of up to an aggregate of twelve months after the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent date such fee would otherwise be payable and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon (B) the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available fee shall cease to Parent and Merger Sub are waived be payable immediately following any exercise by Parent and Merger Sub upon of the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Option under the Option Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. . (c) The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter have entered into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this amount due pursuant to Section 9.5(b8.5(b) and, in order to obtain such payment, Parent commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 8.5, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 6.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX6, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no obligation or liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything to the contrary set forth in this Agreement, no such the provisions set forth in this Section 6.5, Article 1, Article 8, the representations and warranties set forth in Schedule A8 and Schedule B21, the provisions that substantively define any related defined terms not substantively defined in Section 1.1, and the Confidentiality Agreement shall survive the termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: (i) by Parent either the Company, on the one hand, or Purchaser, on the Company other hand, pursuant to Section 9.2(a6.2(a) or (b)Section 6.2(b) and, if the following shall have occurred:in each case, (A) a bona fide Acquisition Proposal shall have been publicly disclosed after the date of this Agreement and not publicly withdrawn (1) at least ten Business Days prior to the Company Meetingdate of termination, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination 6.2(a) or (2) with respect at least ten Business Days prior to any termination pursuant to Section 9.2(b), the date of the Company Meeting; Meeting (including any postponements, recesses or adjournments thereof taken pursuant to Section 5.4), with respect to termination pursuant to Section 6.2(b), and (B) within twelve months after such termination, (121) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatea definitive agreement with respect to, or shall have consummated consummated, or the Company Board shall have approved or recommended to the Company’s stockholders Company Shareholders, an Acquisition Proposal, or otherwise not opposed(2) there shall have been consummated an Acquisition Proposal with respect to the Company (in each case, a Competing Transaction (substituting 35% for the 15% threshold set forth with “fifty percent” being substituted in lieu of “five percent” in each instance thereof in the definition of Competing Transaction “Acquisition Proposal” for purposes of this Section 9.5(b)(i)(B6.5(b)(i)(B));, then the Company shall pay to Purchaser the Termination Fee by wire transfer of immediately available funds substantially contemporaneously with the entry by the Company or any of its Subsidiaries into such definitive agreement, or consummation, approval or recommendation to the Company Shareholders, whichever is earlier; or (ii) by the Company (A) Purchaser pursuant to Section 9.2(b6.4(b) andor Section 6.4(c), prior then the Company shall pay to Purchaser the Termination Fee by wire transfer of immediately available funds within three Business Days following the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a)such termination; or (iii) by Parent the Company pursuant to Section 9.4(a6.3(b). The , then the Company shall pay to Purchaser the Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur wire transfer of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation immediately available funds pursuant to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, terms and conditions set forth in the case of clause Section 6.3(b). (c) The Parties acknowledge and agree that (i) above; (y) in no event shall the Company be required to pay the Termination Fee on the date of termination of this Agreement in the case of clause more than one occasion, (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions agreements set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) 6.5 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub the other Parties would not enter into this Agreement. If Agreement and accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 6.5, and, in order to obtain such payment, Parent Purchaser commences a suit Claim that results in a judgment Final Determination against the Company for the Termination Fee and/or Expenses, as the case may beor any portion thereof, the Company shall pay to Parent Purchaser its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and expensesfees) incurred in connection with such suitClaim, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate of interest per annum quoted by the Bank of Montreal from time to time as announced its reference rate of interest for Canadian dollar demand loans made to its commercial customers in Canada and which the The Wall Street Journal Bank of Montreal refers to as its “prime rate” in effect on the date such payment was required to be mademade from the date such payment was required to be made through the date of payment, after delivery and (iii) notwithstanding anything to the contrary set forth in this Agreement, the Parties hereby acknowledge that in the event that any Termination Fee or portion thereof becomes payable by, and is paid by, the Company, such payment shall be Purchaser’s and Parent’s sole and exclusive remedy for damages or relief pursuant to this Agreement; provided, however, such payment shall not relieve the Company from any liability or damages (including with respect to breaches of reasonable documentation evidencing this Agreement pursuant to which the Termination Fee becomes payable) incurred or suffered by Purchaser or Parent to the extent such costs liability or damages were the result of or arise out of any fraud or any Intentional Breach of any representation, warranty, covenant or agreement in this Agreement occurring prior to such termination (in which case the aggrieved Party shall be entitled to all rights and expensesremedies available in equity or at law).

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXARTICLE VIII, this Agreement (other than as set forth in this Section 10.18.5 and in Section 9.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of from any liability or for damages to any other party resulting from any fraud or prior willful or intentional breach of this Agreement. No termination of this Agreement shall affect or from any obligation to pay, if applicable, the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsTermination Fee pursuant to Section 8.5(b). (b) The If this Agreement is terminated (i) by Parent pursuant to Section 8.4(a) (Change in Recommendation) or (ii) by the Company agrees pursuant to either (x) Section 8.2(b) (Stockholder Vote) at a time when Parent had the right to terminate pursuant to Section 8.4(a) (Change in Recommendation) or (y) Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two business days after such termination in the case of clause (i) or concurrently with such termination in the case of clause (ii) be obligated to pay Parent a fee, by wire transfer in immediately available funds, of fee equal to $7,300,000 1,445,000,000 (the “Termination Fee”). In addition, if (i) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: terminated (iA) by Parent or the Company pursuant to Section 9.2(a8.2(a) (Termination Date) or 8.2(b) (Stockholder Vote) or (bB) by Parent pursuant to Section 8.4(b) (Company Breach), if the following shall have occurred: (Aii) prior to such termination referred to in clause (i), but after the date of this Agreement and prior to the Company MeetingAgreement, a Takeover bona fide Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was shall have been made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended been made directly to the Company’s stockholders generally or otherwise any Person shall have publicly announced an intention (whether or not opposedconditional) to make a bona fide Acquisition Proposal with respect to the Company (a “Company Acquisition Proposal”); and (iii) within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this Section 8.5(b), the Company consummates a Competing Transaction (substituting 35% for Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal, then the 15% threshold set forth in Company shall be obligated to pay the definition of Competing Transaction Termination Fee concurrently with such entry or consummation; provided that solely for purposes of this Section 9.5(b)(i)(B8.5(b)(iii)); (ii) by , the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) term “Acquisition Proposal” shall have occurred the meaning assigned to such term in Section 6.2(d), except that the references to “15% or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee more” shall be paid by the Company no later than: (x) two (2) Business Days after the first deemed to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval be references to “50% or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXmore”. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to pay both promptly the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required should have been made. At the time the Termination Fee is paid by the Company, the Company shall concurrently give to be madeParent wire instructions in the event of a refund of the Termination Fee. (c) In the event that a Termination Fee is paid pursuant to clause (i) of the first sentence of Section 8.5(b), after delivery Parent shall have the right, exercisable by written notice to the Company within one business day after the receipt of reasonable documentation evidencing payment of such costs Termination Fee, to refund such Termination Fee to the Company, and expensesin that event that the Company actually receives a full refund of the entire Termination Fee within two business days after the delivery of such notice, the Company, Parent and Merger Sub shall be entitled to all remedies available as contemplated by Section 8.5(a). In the event that a Termination Fee is paid pursuant to clause (ii) of the first sentence of Section 8.5(b) or the second sentence of Section 8.5(b), Parent shall have the right, exercisable by written notice to the Company within two business days after the receipt of such Termination Fee, to refund such Termination Fee to the Company, and in the event that the Company actually receives a full refund of the entire Termination Fee within two business days after the delivery of such notice, the Company, Parent and Merger Sub shall be entitled to all remedies available as contemplated by Section 8.5(a). If, after receiving the Termination Fee, Parent fails to exercise its right to refund the Termination Fee in accordance with the time periods provided for in this Section 8.5(c), Parent shall be deemed to have irrevocably waived such right and the Company shall have no further liability to Parent or Merger Sub, and Parent and Merger Sub shall have no further liabilities to the Company, under this Agreement except as set forth in Section 9.1. The parties agree that in no event shall the Company be required to pay the Termination Fee on more than one occasion.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided herein, in Section 7.02(b) and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) (i) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 26,500,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of to Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day immediately available funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), to an account specified by Parent in the event of any of the following: (A) in the event that (1) an Acquisition Proposal shall have been made to the Company or its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company, (2) thereafter this Agreement is terminated: (i) terminated by either Parent or the Company pursuant to (x) Section 9.2(a7.01(b) for failure of the Merger to be consummated by the End Date and the Company Shareholder Approval has not been obtained or (by) Section 7.01(c)(ii), if the following shall have occurred: and (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B3) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages the Company enters into a definitive agreement with respect to or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentconsummates an Acquisition Proposal; provided, howeverthat for purposes of this Section 7.02(b)(i)(A), that prior the references to payment “15%” in the definition of such Termination Fee “Acquisition Proposal” shall instead refer to Parent and acceptance “50%”; or (B) this Agreement is terminated by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses7.01(f).

Effect of Termination and Abandonment. (a) 5.5.1. In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXV, this Agreement (other than as set forth in Section 10.16.1) shall become void and of no effect with no liability or obligation on the part of any party hereto either Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto either Party of any liability or for damages resulting from any fraud or willful or intentional breach of this AgreementAgreement or from any obligation to pay, if applicable, the amounts payable pursuant to Section 5.5.2 or 5.5.3. 5.5.2. No In the event that (i) this Agreement is terminated by either BP Amoco or ARCO pursuant to Section 5.2(iii) and at the time of the ARCO Stockholders Meeting (or at any adjournment thereof) an ARCO Acquisition Proposal exists or (ii) (A) this Agreement is terminated by either BP Amoco or ARCO pursuant to Section 5.2(iii) and prior to such termination ARCO's board of directors shall have withdrawn its approval or favorable recommendation to its stockholders of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all (B) this Agreement is terminated by BP Amoco pursuant to Section 5.3(i), Section 5.3(ii) (solely with respect to the recommendation by ARCO or the board of which obligations shall survive directors of ARCO of an ARCO Acquisition Proposal) or Section 5.3(iii) (solely with respect to a willful breach of Section 3.2), or (C) this Agreement is terminated by ARCO in accordance with their terms. (b) The Company agrees Section 5.4(ii), then ARCO shall promptly, but in no event later than two business days after the date of such termination or, in the case of termination pursuant to Section 5.4(ii), at the time provided therein, pay Parent to BP Amoco as compensation for the Merger not becoming effective a fee, by wire transfer in immediately available funds, of $7,300,000 (termination payment equal to the “ARCO Termination Fee”) and shall pay all of the Expenses Amount (as defined in below), which amount shall be exclusive of any expenses to be paid pursuant to Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case 3.9, payable by wire transfer of same day funds on the date that the funds. The term "ARCO Termination Fee or the Expenses, as applicable, is due as provided below)Amount" shall mean, in the event this Agreement is terminated: case of termination by BP Amoco pursuant to clause (ii) of the preceding sentence, $450,000,000 (inclusive of value added tax, if any) or, in the case of termination by BP Amoco or ARCO pursuant to clause (i) by Parent or of the Company pursuant preceding sentence, "ARCO Termination Amount" shall mean $250,000,000 (inclusive of value added tax, if any), plus, if (x) ARCO executes and delivers an agreement with respect to Section 9.2(aany ARCO Acquisition Proposal (an "ARCO Alternative Agreement") or (b)y) an ARCO Acquisition Proposal with respect to ARCO is consummated, if the following shall have occurred: (A) after in any such case, within 12 months from the date of this Agreement termination, an additional $200,000,000 (inclusive of value added tax, if any) (which additional amount shall be paid promptly by wire transfer in same day funds, and prior in no event later than two business days after the earliest date on which the event requiring ARCO to pay such additional sum occurs). In the Company Meeting, event that the board of directors of ARCO recommends the acceptance by ARCO stockholders of a Takeover Proposal (substituting 35% third-party tender or exchange offer for the 15% threshold set forth in the definition of Competing Transaction ARCO Common Shares, such recommendation shall be treated for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into as though an ARCO Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a)had been executed. The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company ARCO acknowledges that the agreements contained in this Section 9.5(b) 5.5.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub BP Amoco would not enter into this Agreement. If the Company ; accordingly, if ARCO fails promptly to pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 5.5.2, and, in order to obtain such payment, Parent BP Amoco commences a suit that which results in a judgment against the Company ARCO for the Termination Fee and/or Expensespayment set forth in this Section 5.5.2, as the case may be, the Company ARCO shall pay to Parent BP Amoco its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the ARCO Termination Fee and/or Expenses, Amount from the each date such for payment was required to be made until the date of such payment at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesmade plus 2 percent.

Effect of Termination and Abandonment. (a) In Except as provided in Section 8.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful or intentional material breach of this Agreement. No Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that: (i) an Acquisition Proposal shall have been made to the Company agrees or publicly made to any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company (and such publicly made Acquisition Proposal or publicly announced intention shall not have been publicly and irrevocably withdrawn at least 10 business days prior to, with respect to any termination pursuant to Section 8.2(a), the Termination Date, and, with respect to termination pursuant to Section 8.2(b), at least 10 business days prior to the date of the Shareholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or Section 8.2(b); (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4 (other than Section 8.4(d)) or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Shareholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4 (other than Section 8.4(d)) shall have occurred; or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then in any case of (i), (ii) or (iii) above, the Company shall promptly, but in no event later than two business days after the date of such termination, pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 100 million (the “Termination Fee”) (provided, however, that the Termination Fee to be paid pursuant to clause (iii) shall be paid as set forth in Section 8.3) and shall promptly, but in no event later than two business days after being notified of such by Parent, pay all of the Expenses (as defined documented out-of-pocket expenses incurred by Parent or Merger Sub in Section 10.14) of Parent actually incurred from third-parties relating to connection with this Agreement and the transactions contemplated by this Agreement prior up to termination (a maximum amount of $15 million, in each case payable by wire transfer of same day funds on the date funds; provided, however, that the no Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: shall be payable to Parent pursuant to clause (i) by Parent of this paragraph (b) unless and until within 12 months of such termination, or at any time prior thereto, (1) the Company pursuant or any of its Subsidiaries shall have entered into an Alternate Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to Section 9.2(a) the Company’s shareholders or otherwise not opposed, or (b)2) there shall otherwise have been consummated, if the following shall have occurred: (A) after the date in any single transaction or series of this Agreement and prior to the Company Meetingrelated transactions, a Takeover an Acquisition Proposal (substituting 35% “50%” for the 15% threshold set forth “20%” in the definition of Competing Transaction “Acquisition Proposal”); provided, that for purposes of this Section 9.5(b)(i)(A)) was made Agreement, an Acquisition Proposal shall not be deemed to the Company or have been “publicly disclosedand irrevocably withdrawn” by any Person if, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) 12 months of such termination termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate(other than a confidentiality agreement) with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders shareholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) an Acquisition Proposal made by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment behalf of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy Person or any of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXits Affiliates. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 8.5(b) or any portion of such fee, the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery to made through the Company date of reasonable documentation evidencing such costs and expensespayment.

Effect of Termination and Abandonment. (a) 5.5.1. In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXV, this Agreement (other than as set forth in Section 10.16.1) shall become void and of no effect with no liability or obligation on the part of any party hereto either Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativestheir Representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto either Parent or the Company of any liability or for damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect or from any obligation to pay, if applicable, the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsamounts payable pursuant to Section 5.5.2 or 5.5.3. (ba) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminatedIf: (i) Parent shall terminate this Agreement pursuant to clauses (i) at a time when an Acquisition Proposal for the Company is pending or (ii) of Section 5.4; or (ii) any Person shall have made an Acquisition Proposal relating to the Company or shall have publicly announced an Acquisition Proposal (or an intention to make an Acquisition Proposal) and thereafter (x) this Agreement is terminated pursuant to clause (iii) of Section 5.2, by Parent or the Company pursuant to clause (i) of Section 9.2(a5.2 (except if the Parent Requisite Vote has not been obtained prior to this termination; provided that if the Parent Shareholders Meeting has not been held prior to the time of this termination, this exception shall not be applicable if an inaccuracy of a representation or warranty of the Company contained in this Agreement, or the failure of the Company to comply with any of its obligations contained in this Agreement, is the primary cause of, or resulted in, the Parent Shareholders Meeting not having been held), or pursuant to clause (iii) of Section 5.4 and (y) within 9 months after the termination of this Agreement, the Company enters into an agreement in respect of any Acquisition Proposal or a transaction pursuant to an Acquisition Proposal is consummated, then in any case as described in clause (i) or (b), if the following shall have occurred: (Aii) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal shall pay to Parent (substituting 35% for the 15% threshold set forth in the definition by wire transfer of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise immediately available funds not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i), one (1) above; (y) on business day following the date of termination of this Agreement or, in the case of clause (ii), the date of the agreement in respect of the Acquisition Proposal or, if earlier, consummation of the transaction in respect thereof) above; and an amount equal to $175 million (z) two (2) Business Days after termination of this Agreement less, in the case of clause (ii), any amount previously or simultaneously paid by the Company to Parent pursuant to paragraph (b) of this Section 5.5.2). (b) If either the Company or Parent shall terminate this Agreement pursuant to clause (iii) above. The Expenses of Section 5.2, then the Company shall be paid pay to Parent within two (2by wire transfer of immediately available funds) Business Days after demand therefor and delivery to not later than the Company date of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant an amount equal to this Article IX. $25 million. (c) The Company acknowledges that the agreements contained in this Section 9.5(b) 5.5.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails promptly to pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 5.5.2, and, in order to obtain such the payment, Parent commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may bepayment set forth in this Section 5.5.2, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such this suit, together with interest on the amount due from each date for payment until the date of the Termination Fee and/or Expensespayment at the prime rate of Citibank, from N.A. in effect on the date such the payment was required to be made plus 2 percent. (a) If: (i) the Company shall terminate this Agreement pursuant to clauses (i) at a time when an Acquisition Proposal for Parent is pending or (ii) of Section 5.3; or (ii) any Person shall have made an Acquisition Proposal relating to Parent or shall have publicly announced an Acquisition Proposal (or the intention to make a proposal) and thereafter (x) this Agreement is terminated pursuant to clause (iv) of Section 5.2, by Parent pursuant to clause (i) of Section 5.2 (except if the Company Requisite Vote has not been obtained prior to the time of this termination; provided that if the Company Stockholders Meeting has not been held prior to the time of this termination, this exception shall not be applicable if an inaccuracy of a representation or warranty of Parent contained in this Agreement, or the failure of Parent to comply with any of its obligations contained in this Agreement is the cause of, or resulted in, the Company Stockholders Meeting not having been held), or pursuant to clause (iii) of Section 5.3 and (y) within 9 months after the termination of this Agreement, Parent enters into an agreement in respect of any Acquisition Proposal or a transaction pursuant to an Acquisition Proposal is consummated, then in any case as described in clause (i) or (ii) Parent shall pay to the Company (by wire transfer of immediately available funds not later than, in the case of clause (i), one (1) business day following the date of termination of this Agreement or, in the case of clause (ii), the date of the agreement in respect of the Acquisition Proposal or, if earlier, consummation of the transaction in respect thereof) an amount equal to $75 million (less, in the case of clause (ii), any amount previously or simultaneously paid by Parent to the Company pursuant to paragraph (b) of this Section 5.5.3). (b) If either Parent or the Company shall terminate this Agreement pursuant to clause (iv) of Section 5.2, then Parent shall pay to the Company (by wire transfer of immediately available funds) not later than the date of termination of this Agreement an amount equal to $25 million. (c) Parent acknowledges that the agreements contained in this Section 5.5.3 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails promptly to pay an amount due pursuant to this Section 5.5.3 and, in order to obtain the payment, the Company commences a suit which results in a judgment against Parent for the payment set forth in this Section 5.5.3, the Parent shall pay to the Company its costs and expenses (including attorneys' fees) in connection with this suit, together with interest on the amount due from each date for payment until the date of the payment at the prime rate as announced in the The Wall Street Journal of Citibank, N.A. in effect on the date such the payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesmade plus 2 percent.

Effect of Termination and Abandonment. (a) In the event of termination of If this Agreement is terminated by the Company or Parent pursuant to Section 7.2(b) or 7.4(a)(i), and, prior to such termination, (x) a proposal with respect to a Transaction shall have been made, and (y) within six (6) months after such termination, the abandonment Company enters into any agreement with respect to a Transaction, or any third party shall acquire beneficial ownership of 50.1% or more of the Merger pursuant to this Article IXCompany's outstanding shares of voting stock, this Agreement then within two business days after the execution of such an agreement or the consummation of such acquisition (other than as set forth in Section 10.1) whichever shall become void and of no effect with no liability or obligation on first occur), the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination Company shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a feeParent, by wire transfer in of immediately available funds, a fee (the "Termination Fee") of $7,300,000 200 million. If this Agreement is terminated by the Company pursuant to clause (a) of Section 7.3 or by Parent pursuant to clause (a)(ii) of Section 7.4, then the “Company shall pay Parent the Termination Fee”) and , which fee shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case be payable by wire transfer of same day funds on either at the date that the Termination Fee or the Expenses, as applicable, is due as provided below), time contemplated in the event this Agreement is terminated: (i) by Parent or the Company pursuant to last sentence of Section 9.2(a) or (b)7.3 if applicable or, if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meetingotherwise, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days business days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXtermination. The Company acknowledges that the agreements contained in this Section 9.5(b7.5(a) are an integral part of the transactions contemplated by in this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 7.5(a), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 7.5(a), the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, fee at the rate of 12% per annum from the date such payment fee was required to be made until paid. (b) In the date event of payment at termination of this Agreement and the prime rate as announced abandonment of the Merger pursuant to this Article 7, all obligations of the parties hereto shall terminate, except the obligations of the parties set forth in this Section 7.5 and Section 5.12 and except for the provisions of Sections 8.3, 8.4, 8.6, 8.8, 8.9, 8.12, 8.13 and 8.14 and except for the Confidentiality Agreement previously executed between the Company and Parent (the "Confidentiality Agreement"). Moreover, in the The Wall Street Journal event of termination of this Agreement pursuant to Section 7.2, 7.3 or 7.4, nothing herein shall prejudice the ability of the nonbreaching party from seeking damages from any other party for any wilful breach of this Agreement, including without limitation, attorneys' fees and the right to pursue any remedy at law or in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesequity.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided herein, in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (bi) The Company agrees shall immediately pay or cause to pay Parent be paid a termination fee, by wire transfer in immediately available fundsrepresenting liquidated damages, of $7,300,000 970,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of to Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day immediately available funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), to an account specified by Parent in the event of any of the following: (1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated: (i) terminated by either -65- Parent or the Company pursuant to (x) Section 9.2(a8.02(a) or (b), if for failure of the following shall have occurred: (A) after Merger to be consummated by the date specified therein and such failure is the result of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition knowing action or inaction of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1y) with respect to any termination pursuant to Section 9.2(a), the date of such termination or 8.02(b)(ii) and (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (BC) within twelve (12) months of such the termination of this Agreement, the Company or any of its Subsidiaries shall have entered into consummates an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B))Proposal; (ii2) this Agreement is terminated by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.03(a); or (iii3) this Agreement is terminated by Parent pursuant to Section 9.4(a8.04(b) or Section 8.04(c). The . (ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company no later than: prior to termination of this Agreement; and provided further that with respect to clause (x1) two (2) Business Days after above, the first Termination Fee shall be paid prior to occur of the execution of Company’s entering into an Alternative Acquisition Agreement (other than a confidentiality agreement)or consummating, approval approving or recommendation to recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company’s stockholders of a Takeover Proposal, failure Company shall have failed to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause such Acquisition Proposal. (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the to Parent, such Termination Fee shall upon payment thereof be payable more than once pursuant the sole remedy for Parent with respect to this Article IX. any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c). (c) The Company acknowledges that the agreements contained in this Section 9.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, such agreements Parent and Merger Sub would not enter have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay both Parent any amounts due under paragraph (b) above within the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may betime period specified therein, the Company shall pay to Parent its reasonable all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the Termination Fee and/or Expenses, from the date any such payment was required to be made until the date of payment unpaid amounts at the publicly announced prime rate as announced of interest printed in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 110 million (the “Termination Fee”) ), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposedopposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor therefore and delivery to the Company of reasonable documentation therefor therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination FeeFee and Expenses, if such payment is actually paid and is accepted by Parentpaid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent and acceptance by Parent thereofParent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesaffiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided hereinherein and subject to Section 8.5(c), no such termination shall relieve any party hereto of any liability or for damages to the other party hereto resulting from any fraud or willful or knowing and intentional material breach of this Agreement. No Agreement and (ii) the provisions set forth in this Section 8.5 Section 8.6 and Article IX and the Confidentiality Agreement shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent or (x) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 9.2(a8.2(a) or (bSection 8.2(b), if the following (y) any person shall have occurred: (A) made and publicly disclosed a bona fide Acquisition Proposal after the date of this Agreement and hereof but prior to the Company Meetingsuch termination, a Takeover and such Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or shall not have been publicly disclosed, withdrawn prior to either (1) such termination or, with respect to any a termination pursuant to Section 9.2(a8.2(b), prior to the date of such termination or Shareholders Meeting and (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (Bz) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative a definitive agreement with respect to such Acquisition Agreement Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (z) the references to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the “15% threshold set forth %” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)“Acquisition Proposal” shall be deemed to be references to “50%”); (ii) this Agreement is terminated by the Company (A) Parent pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.4(a); or (iii) this Agreement is terminated by Parent the Company pursuant to Section 9.4(a8.3(a). The Termination Fee shall be paid by , then the Company no later than: shall (xA) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on , within four Business Days after the date of termination of this Agreement on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, (B) in the case of clause (ii) above; and (z) two (2) , no later than four Business Days after termination the date of this Agreement such termination, and (C) in the case of clause (iii) above. The Expenses , immediately prior or substantially concurrently with such termination, pay Parent an amount equal to Twenty-Six Million Dollars ($26,000,000) (the “Termination Fee” by wire transfer of immediately available funds (it being understood that in no event shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise be required to pay the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable on more than once pursuant to this Article IX. one occasion). (c) The Company acknowledges parties acknowledge that the agreements contained in this Section 9.5(b) 8.5 are an integral part of the transactions contemplated by this Agreementhereby, and that, without these agreements, Parent and Merger Sub the parties would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this amount due pursuant to Section 9.5(b8.5(b) and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may beamount set forth in Section 8.5(b) or any portion thereof, the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the such amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment or portion thereof at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery made through the date of payment. Notwithstanding anything herein to the contrary, in the event that the Termination Fee is paid, Parent’s receipt of the Termination Fee from the Company pursuant to this Section 8.5 shall be the sole and exclusive remedy of reasonable documentation evidencing Parent and Merger Sub and their respective affiliates against the Company, its subsidiaries and any of their respective former, current, or future general or limited partners, shareholders, directors, officers, managers, members, affiliates or agents for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Merger to be consummated, and upon payment of such costs amounts, none of the Company, its subsidiaries or any of their respective former, current, or future general or limited partners, shareholders, directors, officers, managers, members, affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby (except for any reimbursement and expensesexpense obligations of the Company pursuant to the first sentence of this Section 8.5(c)).

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.2) shall become void and of no effect with no liability (other than as set forth in Section 8.5(b) or obligation in the proviso at the end of this sentence) on the part of any party hereto (to this Agreement or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of to this Agreement from any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that (i) an Acquisition Proposal is publicly announced and not withdrawn prior to the Company agrees Stockholders Meeting, the Board of Directors of the Company shall have withdrawn or materially modified, in a manner adverse to Parent, its approval or recommendation of this Agreement or the Merger and this Agreement is terminated by the Company or Parent pursuant to Section 8.2(ii), (ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) (but with respect to Section 8.4(a), only if the Board of Directors of the Company shall have withdrawn its approval or recommendation of this Agreement or the Merger or modified or changed that approval or recommendation to such an extent that it is no longer approving or recommending this Agreement or the Merger), (iii) an Acquisition Proposal is publicly announced and not withdrawn prior to the Company Stockholders Meeting, this Agreement is terminated by the Company or Parent pursuant to Section 8.2(ii) and within one year after such termination the Company enters into a definitive agreement with respect to an Acquisition Proposal or an Acquisition Proposal is consummated, in either case with any Person or (iv) this Agreement is terminated by the Company pursuant to Section 8.3(b), then the Company shall pay Parent a fee, by wire transfer in immediately available funds, of fee equal to $7,300,000 75 million (the “"Termination Fee”"). In the event of a termination by the Company described in clause (i) and shall pay all or (iv) of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to preceding sentence, the transactions contemplated by this Agreement prior to termination (in each case Termination Fee shall be payable by wire transfer of same day funds on as a condition precedent to such termination; in the date that event the Termination Fee shall become payable pursuant to clause (iii) of the preceding sentence, the Termination Fee shall be payable by wire transfer of same day funds simultaneously with the execution of the definitive agreement or the Expenses, as applicable, is due as provided below), consummation of the Acquisition Proposal which gives rise to the obligation to pay the Termination Fee; and in the event this Agreement is terminated: of a termination by Parent described in clause (i) by Parent or the Company pursuant to Section 9.2(a) or (b)ii) of the preceding sentence, if the following Termination Fee shall have occurred: (A) be payable by wire transfer of same day funds promptly, but in no event later than two days after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for this Agreement. For purposes of this Section 9.5(b)(i)(B8.5(b)); (ii) by , the Company (A) pursuant to Section 9.2(b) and, prior to the date definition of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee "Acquisition Proposal" shall be paid modified by the Company no later than: (x) two (2) Business Days after the first changing all references to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation "15%" to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. "50%." The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If Accordingly, if the Company fails to pay both promptly the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this paragraph (b), the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, howeverparty to this Agreement, except as otherwise provided herein, no such termination in this Section 10.05 and except that nothing herein shall relieve any party hereto of from liability for any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent In the event of a fee, by wire transfer in immediately available funds, termination of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a10.03(a) or (b), if then Parent shall within two business days of such termination pay the following Company by wire transfer or immediately available funds to an account specified by the Company up to $3.0 million to reimburse the Company for its documented fees and expenses (including the fees and expenses of counsel, accountants, consultants and advisors) incurred in connection with this Agreement and the transactions contemplated hereby. In the event of a termination of this Agreement by Parent pursuant to Section 10.02(a) or (b), then the Company shall have occurred: within two business days of such termination pay Parent by wire transfer or immediately available funds to an account specified by Parent up to $3.0 million to reimburse Parent for its documented fees and expenses (Aincluding the fees and expenses of counsel, accountants, consultants and advisors) after incurred in connection with this Agreement and the transactions contemplated hereby. In the event of a termination of this Agreement by Parent pursuant to Section 10.02(b) and Parent and the Company mutually agree in writing that such termination was valid and in accordance with this Agreement and resulted solely from a Ziconotide Event then, at the Company's option exercised at the time of such termination, Parent shall, within 30 days of such termination, purchase 2,000,000 shares of Company Common Stock at a purchase price in cash equal to $20 per share (subject to appropriate adjustments in the event of any split, combination or reclassification of the Company Common Stock at any time subsequent to the date of this Agreement and prior Agreement). Parent shall be entitled to customary registration rights relating to such Company Common Stock including, but not limited to, one demand registration at Parent's expense. (c) In the Company Meeting, event of a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes termination of this Section 9.5(b)(i)(A)Agreement (i) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination by Parent pursuant to Section 9.2(a), the date of such termination 10.02(c) or (2d) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and10.03(c), prior to the date of then, in any such case, the Company Meetingshall within two business days of such termination pay Parent by wire transfer or immediately available funds to an account specified by Parent (a) up to $3.0 million to reimburse Parent for its documented fees and expenses (including the fees and expenses of counsel, any event giving rise to Parent’s right accountants, consultants and advisors) incurred in connection with this Agreement and the transactions contemplated hereby and (b) a fee of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or$24.0 million as liquidated damages. (iiid) In the event of a termination of this Agreement by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by 10.01(b) and if Parent and the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, mutually agree in the case of clause writing that (i) above; (y) on the date of such termination of this Agreement in the case of clause (ii) above; was valid and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(bAgreement and (ii) andat the time of such termination a Ziconotide Event shall have occurred and be continuing and each of the conditions set forth in Articles VI, in order VII and VIII shall have been satisfied or waived by the party or parties entitled to obtain the benefit of such paymentconditions, other than any condition which shall not have been satisfied solely as a result of such Ziconotide Event, then, at the Company's option exercised at the time of such termination, Parent commences shall, within 30 days of such termination, purchase 2,000,000 shares of Company Common Stock at a suit that results purchase price in a judgment against cash equal $20 per share (subject to appropriate adjustments in the event of any split, combination or reclassification of the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay Common Stock at any time subsequent to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment this Agreement). Parent shall be entitled to customary registration rights relating to such Company Common Stock including, but not limited to, one demand registration at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesParent's expense.

Effect of Termination and Abandonment. (a) In Except as provided in Section 9.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, this Agreement (other than as set forth in this Section 10.19.5 and Sections 6.2(c), 6.2(d) and 7.9 and Article X) shall become void and of no effect with no liability or obligation on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided hereinset forth in Section 9.5(e) below, no such termination shall relieve any party Party hereto of any liability or damages resulting from (i) any fraud or willful or intentional and material breach of any representations or warranties contained in this Agreement or (ii) any willful and material breach of any covenant or agreement contained in this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.2(a9.3(b) or (bby Parent pursuant to Section 9.4(b), if the following shall have occurred:; or (Aii) at any time on or after the date of this Agreement hereof and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes termination of this Section 9.5(b)(i)(A)) was Agreement pursuant to this Article IX it shall be publicly disclosed that an Acquisition Proposal shall have been made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries subsidiaries or any of its stockholders, or any person shall have entered into publicly announced an Alternative intention (whether or not conditional) to make an Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended Proposal with respect to the Company’s stockholders Company or otherwise not opposedany of its subsidiaries, and thereafter this Agreement is terminated pursuant to Section 9.3(a)(ii) or Section 9.4(a) (A) following a Competing Transaction (substituting 35% for failure of the 15% threshold Offer Condition set forth in the definition paragraph 2(d) of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant Exhibit A to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred be satisfied or (B) as a result of a failure of the Minimum Tender Condition to be satisfied at any expiration of the Offer when all other Offer Conditions have been satisfied or waived, and, in the case of either clause (A) or clause (B), within 12 months of such termination, (x) the Company enters into an agreement with respect to any Acquisition Proposal or (y) any Acquisition Proposal is consummated; then the Company shall pay Parent a termination fee of ten million U.S. dollars (US$10,000,000) in same-day funds. Such payment shall be made (I) concurrently with such termination in the case of a termination by the Company pursuant to Section 9.3(a9.3(b); or , (iiiII) on the first Business Day following the date of such termination in the case of a termination by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by 9.4(b) and (III) on the Company no later than: first Business Day after the occurrence of any of the events referred to in clauses (x) two and (2y) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, Section 9.5(b)(ii) in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be a fee payable more than once pursuant to this Article IX. Section 9.5(b)(ii). (c) The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub or Purchaser would not enter have entered into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this any amount due pursuant to Section 9.5(b) ), as applicable, and, in order to obtain such payment, Parent commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 9.5, the Company shall pay to Parent its reasonable any costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until of termination of this Agreement on the date of payment amounts owed at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on from time to time during such period plus two percent. (d) If Parent would be entitled to terminate this Agreement and receive a fee pursuant to Section 9.5(b)(ii)(A), termination of this Agreement and collection of such fee shall be the date such payment was required exclusive remedy of Parent and Purchaser in respect of any breach, failure, untruth or incorrectness referred to be made, after delivery to the Company in paragraph 2(d) of reasonable documentation evidencing such costs and expenses.Exhibit A.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article IXVIII, this Agreement (other than as set forth in this Section 10.18.5 and in Section 9.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of (1) from any liability or for damages to any other party resulting from any fraud or willful any prior breach by such party in any material respect of its covenants or intentional breach of this Agreement. No termination of agreements set forth in this Agreement that shall affect have proximately contributed to the obligations failure of the parties contained Mergers to be consummated, and the aggrieved party shall be entitled to all rights and remedies available at law or in equity or (2) from any obligation to pay, if applicable, the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsCompany Termination Fee pursuant to Section 8.5(b) or the Parent Reimbursement Amount pursuant to Section 8.5(c). (b) The If this Agreement is terminated (i) by Parent pursuant to Section 8.4(a) (Change in Recommendation) or (ii) by the Company agrees pursuant to either (x) Section 8.2(b) (Stockholder Vote) at a time when Parent had the right to terminate pursuant to Section 8.4(a) (Change in Recommendation) or (y) Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two business days after such termination in the case of clause (i) or concurrently with such termination in the case of clause (ii), pay Parent a fee, by wire transfer in immediately available funds, of fee equal to $7,300,000 1,725,000,000 (the “Company Termination Fee”). In addition, if (i) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: terminated (iA) by Parent or the Company pursuant to Section 9.2(a8.2(a) (Termination Date) or 8.2(b) (Stockholder Vote) or (bB) by Parent pursuant to Section 8.4(b) (Company Breach), if the following shall have occurred: (Aii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement and prior to the Company MeetingAgreement, a Takeover bona fide Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was shall have been publicly made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended been made directly to the Company’s stockholders generally or otherwise any Person shall have publicly announced an intention (whether or not opposed, conditional) to make a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by bona fide Acquisition Proposal with respect to the Company (Aa “Company Acquisition Proposal”) pursuant to Section 9.2(b) andor, prior to in the date of the Company Meeting, any event giving rise to Parent’s right case of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a8.4(b) (Company Breach). The , a Company Acquisition Proposal shall have been made publicly or privately to the Company, (iii) in the case of a termination pursuant to Section 8.2(a) (Termination Date), the conditions set forth in Sections 7.1(c) (Governmental Consents), 7.1(d) (Law; Order) and 7.2(c) (Government Approvals) shall have been satisfied, and (iv) within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this sentence of Section 8.5(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal, then the Company shall pay the Company Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 8.5(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), except that the references to “15% or more” shall be paid deemed to be references to “50% or more”. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion. (c) If this Agreement is terminated by the Company no later than: or Parent (xi) two pursuant to Section 8.2(c) (2Law; Final and Non-Appealable Order) Business Days after as the first result of any applicable Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or an Order imposed by a Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Laws, Communications Laws, Utilities Laws or Foreign Regulatory Laws (each, a “Governmental Regulatory Entity”) with respect to occur an Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or (ii) pursuant to Section 8.2(a) (Termination Date) and, at the time of such termination, one or more of the execution conditions set forth in Section 7.1(c) or Section 7.1(d) (as the result of any applicable Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or an Alternative Acquisition Agreement (other than Order imposed by a confidentiality agreement)Governmental Regulatory Entity with respect to an Antitrust Law, approval Communications Law, Utilities Law or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal Foreign Regulatory Law) or the consummation of a Competing TransactionSection 7.2(c) was not satisfied and, in the case of each of (i) or (ii), at the time of such termination (A) all of the other conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, provided that such conditions were then capable of being satisfied if the Closing had taken place) and (B) the Company is not in breach in any material respect of its obligations under this Agreement in any manner that shall have proximately contributed to the imposition of the Order referred to in clause (i) above; (y) on or the date failure of termination of this Agreement the conditions referred to in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to , as applicable, then Parent shall, within two (2) Business Days business days after demand therefor and delivery to such termination, pay the Company in respect of reasonable documentation therefor following its time and expenses an amount equal to $500,000,000 (the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b“Parent Reimbursement Amount”). Notwithstanding anything in this Agreement In no event shall Parent be required to pay the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable Reimbursement Amount on more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesone occasion.

Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 8.5(b) and Section 9.1 below, in the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in this Agreement to the contrary, (i) no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any fraud or willful or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a8.2(b) or (bSuperior Proposal), if the following shall have occurred: (A) after the date of this Agreement and then immediately prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummateto, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposedconcurrent with, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B));such termination, (ii) by the Company (A) Parent pursuant to Section 9.2(b8.2(b) and, prior to the date of the (Requisite Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(aVote); or; (iii) by Parent pursuant to Section 9.4(a8.3(e) (Company Material Breach) (as a result of a breach of Section 6.2 (Acquisition Proposals; Change of Recommendation). The Termination Fee shall be paid by ) and within twelve months of such termination, the Company enters into a definitive agreement to consummate such Acquisition Proposal and subsequently consummates the transactions contemplated by such Acquisition Proposal, then promptly, and in no event later than: than two Business Days, after the consummation of such transactions; (xiv) by Parent pursuant to 8.3(a) (Company Change of Recommendation), or (v) by Parent, pursuant to Section 8.3(d) (Company Written Consent), then promptly, but in no event later than two (2) Business Days after the first date of any such termination, the Company shall pay the termination fee of $55,000,000 (the “Company Termination Fee”), to occur Parent in each case by wire transfer of immediately available cash funds and shall also pay all of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement)reasonable and documented out-of-pocket expenses, approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence including those of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contraryExchange Agent, incurred by Parent and or Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with and the termination provisions set forth in this Article IXTransactions (the “Parent Expense Reimbursement”). Under In no circumstances event shall the Company be required to pay the or the Parent Expense Reimbursement or the Company Termination Fee be payable on more than once pursuant to this Article IX. one occasion. (c) The Company acknowledges Parties hereby acknowledge and agree that the agreements contained in this Section 9.5(b) 8.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub the Parties would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5, and, in order to obtain such payment, Parent any of Parent, Holdco or the Merger Subs commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befees set forth in this Section 8.5 or any portion of such fees, the Company shall pay to Parent Parent, Holdco or the applicable Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the published from time to time by The Wall Street Journal Journal, Eastern Edition, as the “prime rate” at large U.S. money center banks in effect on the date such payment was required to be mademade from the date such payment was required to be made through the date of payment. Notwithstanding anything in this Agreement to the contrary, after delivery the Parties hereby acknowledge and agree that in the event that any termination fee becomes payable by, and is paid by, the Company and accepted by Parent, such fee shall be Parent’s sole and exclusive remedy for monetary damages pursuant to this Agreement, provided, however, no such payment shall relieve or limit the Company of reasonable documentation evidencing such costs and expensesany liability or damages to Parent resulting from any Willful Breach of this Agreement.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided herein, in Section 7.02(b) and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) (i) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 32,500,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of to Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day immediately available funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), to an account specified by Parent in the event of any of the following: (A) in the event that (1) an Acquisition Proposal shall have been made to the Company or its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company, (2) thereafter this Agreement is terminated: (i) terminated by either Parent or the Company pursuant to (x) Section 9.2(a7.01(b) for failure of the Merger to be consummated by the End Date and the Stockholder Approval has not been obtained or (by) Section 7.01(c)(ii), if the following shall have occurred: and (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B3) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages the Company enters into a definitive agreement with respect to or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentconsummates an Acquisition Proposal; provided, howeverthat for purposes of this Section 7.02(b)(i)(A), that prior the references to payment “15%” in the definition of such Termination Fee “Acquisition Proposal” shall instead refer to Parent and acceptance “50%”; or (B) this Agreement is terminated by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses7.01(f).

Effect of Termination and Abandonment. Except as provided in paragraphs (a) In and (b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall will become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Affiliates or other representativesRepresentatives); provided, however, except as otherwise provided hereinand notwithstanding anything herein to the contrary, that (i) no such termination shall will relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees its obligation to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, Reverse Termination Fee (as applicable, is due as provided below), the expense obligations pursuant to this Section 8.5(c) or any damages to any other party hereto resulting from any deliberate and material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the event second sentence of Section 9.1 will survive the termination of this Agreement. (a) If this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a8.3(a); (ii) pursuant to Section 8.4(a) or Section 8.4(b); or (biii) pursuant to Section 8.2(b) or Section 8.4(c), if the following shall have occurred: and (A) after the date of this Agreement and prior to the date of the termination of this Agreement, any Person will have made or publicly disclosed or announced an Acquisition Proposal and (B) within 12 months after termination of this Agreement, the Company Meeting, will have entered into a Takeover definitive agreement with respect to an Acquisition Proposal or consummated a transaction contemplated by an Acquisition Proposal (substituting 35% provided that, solely for purposes of this clause (B), the references to “15% threshold set forth %” in the definition of Competing Transaction for purposes “Acquisition Proposal” will be deemed to be references to “50.1%”), then the Company will pay Parent, by wire transfer of this Section 9.5(b)(i)(A)) was made immediately available funds, an amount equal to the Company or publicly disclosedTermination Fee, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (ia)(i) above; , prior to or on the day of such termination, (y) on the date of termination of this Agreement in the case of clause (iia)(ii) above; , within two Business Days of such termination and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid , on the earlier of the day the Company enters into a definitive agreement with respect to an Acquisition Proposal or consummates a transaction contemplated by an Acquisition Proposal. (b) If this Agreement is terminated by either Parent within two or the Company (2i) Business Days after demand therefor and delivery pursuant to Section 8.2(c), but only if the applicable Order relates to the Company HSR Act or any other competition, merger control, antitrust or similar Law or regulation, or (ii) pursuant to Section 8.2(a) and, in the case of reasonable documentation therefor following this clause (ii), at the occurrence time of such termination, all of the termination event giving rise conditions set forth in Section 7.1 and Section 7.2 have been satisfied (other than (x) Section 7.1(b) or Section 7.1(c) (but, in the case Section 7.1(c), only if the applicable Order relates to the Termination Fee payment obligation described in this Section 9.5(bHSR Act or any other competition, merger control, antitrust or similar Law or regulation) and (y) conditions that by their nature are to be satisfied at the Closing, but that are capable of being satisfied if the Closing were to occur on the date of such termination). Notwithstanding anything in this Agreement , then Parent shall pay to the contraryCompany, Parent and Merger Sub agree that payment of such by wire transfer in immediately available funds to an account specified by the Company, an amount equal to the Reverse Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such no Reverse Termination Fee shall be payable pursuant to Parent and acceptance by Parent thereofthis Section 8.5(b) in the event that the failure of the condition set forth in Section 7.1(b) or Section 7.1(c) (but, nothing herein in the case Section 7.1(c), only if the applicable Order relates to the HSR Act or any other competition, merger control, antitrust or similar Law or regulation) to be satisfied is a result of the Company’s breach of Section 6.5 (other than any immaterial breach). The Reverse Termination Fee due under this Section 8.5(b) shall prohibit Parent from seeking specific performance be paid on the second Business Day immediately following the date of termination of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. . (c) The Company acknowledges parties each acknowledge that the agreements contained in this Section 9.5(b) 8.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the parties would not enter have entered into this Agreement, and that any amounts payable pursuant to Section 8.5(a) do not constitute a penalty but constitute payment of liquidated damages and that each of the respective liquidated damages amounts is reasonable in light of the substantial but indeterminate harm anticipated to be caused by the other party’s breach or default under this Agreement, the difficulty of proof of loss of damages, the inconvenience and non-feasibility of otherwise obtaining an adequate remedy, and the value of the transactions to be consummated thereunder. If the Company either party fails to pay both the Termination Fee and Expenses in accordance with this when due any amount payable pursuant to Section 9.5(b8.5(a) or Section 8.5(b), and, in order to obtain such payment, the Company, Parent or Merger Sub commences a suit that results in a judgment against the Company or Parent (as applicable) for the Termination Fee and/or Expenses, fee set forth in Section 8.5(a) or Section 8.5(b) (as the case may beapplicable) or any portion of such fee, the Company or Parent shall pay to Parent Parent, Merger Sub or the Company (as applicable) its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from fee at the prime rate as published in The Wall Street Journal on the date such payment was required to be made until through the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensespayment.

Effect of Termination and Abandonment. (a) If this Agreement is terminated by the Company or Parent pursuant to Section 8.2(b), 8.3(a) or 8.4(a), and (x) prior to such termination, a proposal with respect to a Transaction shall have been made, and (y) within two (2) years after such termination, either the Company enters into any agreement with respect to a Transaction whereby any third party shall acquire beneficial ownership of more than 50% of the Company's (i) outstanding shares of voting stock or (ii) assets (measured by fair market value), then the Company shall pay Parent, by wire transfer of immediately available funds, a fee (the "Termination Fee") of Five Million Dollars ($5,000,000) within fifteen (15) business days after the execution of such agreement or the consummation of such acquisition (whichever shall first occur). (b) The Company acknowledges that the agreements contained in this Section 8.5 are an integral part of the transactions contemplated in this Agreement and that the Termination Fee constitutes liquidated damages and is not a penalty. If the Company fails to promptly pay the Termination Fee when due and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company, the Company shall reimburse Parent for its costs and expenses (including attorneys' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee at the prime rate, as then quoted in The Wall Street Journal, from the date the Termination Fee was required to be paid. (c) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX8, this Agreement (other than as set forth in Section 10.1) all obligations of the parties hereto shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, howeverterminate, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect (i) the obligations of the parties contained set forth in this Section 8.5 and Section 6.9, (ii) the provisions of Sections 9.3, 9.6, 9.9, 9.12 and 9.13, and (iii) the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Agreement previously executed between the Company agrees to pay and Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below"Confidentiality Agreement"). Moreover, in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in pursuant to Section 8.3 or 8.4, nothing herein shall prejudice the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence ability of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrarynonbreaching party from seeking damages, Parent and Merger Sub agree that after taking into account payment of such the Termination Fee, if such payment is actually paid and is accepted by Parentfee has been paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination from any other party for any willful breach of this Agreement, including without limitation, attorneys' fees and that all other damages or remedies, the right to pursue any remedy at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesequity.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability or obligation (other than the liabilities arising under the provisions, including this Section 8.5, set forth in Section 9.1) on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: terminated (i) by the Company pursuant to Section 8.3(a), (ii) by Parent pursuant to Section 8.4(a) or (iii) by either Parent or the Company pursuant to Section 9.2(a8.2(a) or 8.2(b) (b), if and at the following shall have occurred: (A) after the date time of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any such termination pursuant to Section 9.2(a), the date of such termination 8.2(a) or (28.2(b) with respect any Person shall then be making or proposing an Acquisition Proposal to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummateor any of its stockholders), or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by then the Company (A) pursuant to Section 9.2(b) andshall, not later than immediately prior to the date time of the Company Meeting, any event giving rise to Parent’s right of such termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery ), not later than immediately prior to the Company time of reasonable documentation therefor following the occurrence entering into an agreement concerning a transaction that constitutes a Superior Proposal, pay Parent a termination fee of the termination event giving rise $94.9 million plus an amount equal to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent Parent's charges and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid expenses incurred in connection with the termination transactions contemplated by this Agreement, up to a maximum of $5,000,000 in each case by wire transfer of same day funds. In order to facilitate the timely making of the foregoing payment, in the event that Parent elects to terminate this Agreement in accordance with Agreement, Parent shall notify the termination provisions set forth in Company thereof not later than 10:00 a.m. (New York City time) on the business day immediately preceding the date of such termination. In the event that Parent fails to provide such advance notice of its election to terminate this Article IX. Under no circumstances Agreement, the Company shall be obligated to make the Termination Fee be payable more foregoing payment not later than once pursuant to this Article IX12:00 p.m. (New York City time) on the business day immediately following the date of such termination. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub Subsidiary would not enter have entered into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Subsidiary commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this paragraph (b), the Company shall pay to Parent or Merger Subsidiary its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until of termination of this Agreement on the date of payment amounts owed at the prime rate as announced in the of The Wall Street Journal Chase Manhattan Bank, in effect on from time to time during such period plus two percent. (c) In the date event this Agreement is terminated by the Company or Parent pursuant to Section 8.2(a) or 8.2(b) and at the time of such payment was required to be made, after delivery termination no Person is then making or proposing an Acquisition Proposal to the Company or any of reasonable documentation evidencing its Subsidiaries or any of its stockholders, then the Company shall promptly, but in no event later than two business days after Parent shall have requested payment of its charges and expenses incurred in connection with the transactions contemplated hereby ("Expenses"), pay to Parent the amount of such costs Expenses up to a maximum of $5,000,000 and, if within 18 months of such termination, the Company enters into an agreement concerning a transaction that constitutes an Acquisition Proposal, the Company at the time of entering into such agreement, shall pay to Parent the termination fee of $94.9 million, in each case payable by wire transfer of same day funds. (d) Notwithstanding anything contained herein to the contrary, any payment owed by the Company to Parent pursuant to this Section 8.5 shall by payable as follows: (i) any amounts up to the first $70 million shall be payable in cash and expenses(ii) the balance shall be payable by delivery of a note, which shall (i) bear interest at the prime rate of The Chase Manhattan Bank in effect from time to time plus two percent, (ii) have a final maturity of the earlier of the consummation of a transaction contemplated by an Acquisition Proposal or one year from the date of termination of this Agreement and (iii) have other customary terms and conditions.

Effect of Termination and Abandonment. (a) In the event of the termination of this Agreement Plan and the abandonment of the Merger pursuant to this Article IXVII, this Agreement Plan (other than as set forth in Section 10.15.5(b), this Section 7.4, and Article VIII) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsPlan. (b) The Company agrees shall pay to pay Parent a fee, by wire transfer in immediately available funds, fee of $7,300,000 15,800,000 (the “Termination Fee”) and if: (1) an Acquisition Proposal shall pay all have been made or proposed to have been made to the Company or the stockholders of the Expenses (as defined Company, or shall have been publicly disclosed, the actions of the Company or its board of directors with respect to such Acquisition Proposal shall entitle Parent to terminate this Plan pursuant to Section 7.2(c), and Parent terminates this Plan pursuant to Section 7.2(c); provided that if the Company terminates this Plan pursuant to Section 7.3(b) in Section 10.14) of circumstances that would have permitted Parent actually incurred from third-parties relating to terminate this Plan prior to the transactions contemplated by this Agreement prior Company Meeting pursuant to termination (in each case payable by wire transfer of same day funds on Section 7.2(c), and the date that Company would have been required to pay Parent the Termination Fee or under the Expensesfirst clause of this Section 7.4(b)(1) had Parent so terminated this Plan, as applicable, is due as provided below), in the event then this Agreement is terminated: (i) by Parent or the Company Plan shall be deemed terminated pursuant to Section 9.2(a7.2(c) or for purposes of this Section 7.4(b)(1); or (b), if the following shall have occurred: 2) (A) after the date of this Agreement and prior to the Company Meeting, a Takeover an Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was shall have been made to the Company or shall have been made directly to the shareholders of the Company generally or shall otherwise become publicly disclosedknown or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal, prior to either (1B) this Plan is terminated pursuant to: (i) Section 7.2(a) (other than with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)non-willful breach); (ii) by the Company Section 7.2(d); (Aiii) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a7.3(a); or (iiiiv) by Parent pursuant to Section 9.4(a7.3(b). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of the termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors officers or other representativesRepresentatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsprior to such termination. (b) The In the event that (i) a bona fide Acquisition Proposal (assuming, for this purpose only, that all references to “15%” in the definition of such term were changed to “40%”) (a “Covered Proposal”)) shall have been made to the Company agrees or any of its Subsidiaries and its existence shall have become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Covered Proposal with respect to the Company or any of its Subsidiaries and thereafter this Agreement is terminated (A) by either Parent or the Company pursuant to Section 8.2(a) (where the only condition not satisfied or waived is the one set forth in Section 7.1(a)) or Section 8.2(b) (and such Covered Proposal or publicly announced intention shall not have been withdrawn at the time of the Stockholders Meeting) or (B) by Parent pursuant to Section 8.4(a) or Section 8.4(c), (ii) this Agreement is terminated by Parent pursuant to Section 8.4(d) or by the Company pursuant to Section 8.3(a), then the Company shall promptly, but in no event later than the date of termination (in the case of a termination pursuant to 8.3(a)) or two business days after the date of such termination (in the other cases specified in this Section 8.5(b)), pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 60 million (the “Termination Fee”) and (if in the case of a termination pursuant to clause (i) of this paragraph (b), there shall be no condition contained in Article VII of this Agreement that, as of the time of such termination, shall not have been satisfied as a result of a breach of this Agreement by Parent) shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the Expenses (as defined documented out-of-pocket expenses, including those of the Exchange Agent, incurred by Parent or Merger Sub in Section 10.14) of Parent actually incurred from third-parties relating to connection with this Agreement and the transactions contemplated by this Agreement prior up to termination (a maximum amount of $15 million, in each case payable by wire transfer of same day funds on the date funds; provided, however, that the (1) no Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: shall be payable to Parent pursuant to clause (i) of this paragraph (b) and (2) no payment of expenses incurred by Parent or Merger Sub shall be payable as a result of the termination of this Agreement by either Parent or the Company pursuant to Section 9.2(a) or (b8.2(a), if in each case, unless and until the following shall have occurred: Company consummates, or enters into a definitive agreement providing for, any Covered Proposal with any Person (Aother than Parent or its Affiliates) within 12 months after the date of on which this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXso terminated. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the Termination Fee and/or Expensesfee, as the case may becharges or expenses to which reference is made in this paragraph (b), the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank, N.A. in effect on the date such payment was required to be made, after delivery . Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee and/or out-of-pocket expenses become payable and are paid by the Company of reasonable documentation evidencing such costs pursuant to this Section 8.5(b), the Termination Fee and expensesout-of-pocket expenses shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, written notice thereof shall be given to the other party or parties, specifying the provision hereof pursuant to which such termination is made and this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, Affiliates, agents, legal and financial advisors advisor or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No Agreement by such party prior to such termination or any fraud, willful misconduct or intentional misrepresentation on the part of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termssuch party. (b) The Company agrees shall pay to pay Parent a fee, by wire transfer termination fee in immediately available funds, of an amount in cash equal to $7,300,000 8,255,000 (the “Company Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated:): (i) if this Agreement is terminated by Parent pursuant to Sections 9.3(a) or 9.3(b), in which event payment of the Company Termination Fee will be made within two (2) Business Days after such termination; (ii) if this Agreement is terminated by Parent or the Company pursuant to Section 9.2(a9.2(b) or (b), if the following shall have occurred: and (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date time of such termination or (2) with respect to any termination pursuant to Section 9.2(b)termination, the date of the Company Meeting; and an Acquisition Proposal had been made, and (B) within twelve (12) months after the date of such termination the Company or any of its Subsidiaries shall have entered enters into an Alternative Acquisition Agreement to consummatea definitive agreement with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposedconsummates, a Competing Transaction transaction contemplated by any Acquisition Proposal (substituting 35% provided, that, for the 15% threshold set forth purposes of this clause (B) only, references in the definition of Competing Transaction for purposes Acquisition Proposal to the figure “20%” shall be deemed to be replaced by “50%”), in which event payment of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, Termination Fee will be made on or prior to the date of on which the Company Meetingenters into such definitive agreement or such consummation, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a)as applicable; orand (iii) if this Agreement is terminated by Parent the Company pursuant to Section 9.4(a9.4(b). The , in which event payment of the Company Termination Fee will be made in advance of, or concurrently with, and as a condition to such termination. (c) Parent shall pay to the Company a termination fee in an amount equal to $30,000,000 (the “Parent Termination Fee”) in the event that this Agreement is terminated by Parent for an Adverse FDA Event pursuant to Section 9.3(e), in which event payment of the Parent Termination Fee will be made concurrently with and as a condition to such termination. (d) Any payment of the Company Termination Fee shall be paid made by wire transfer of immediately available funds to an account designated in writing by Parent to the Company and any payment of the Parent Termination Fee shall be made by wire transfer of immediately available funds to an account designated in writing by the Company no later than: to Parent. (xe) two (2) Business Days after The parties hereto agree that they have computed, estimated and agreed upon the first Company Termination Fee and the Parent Termination Fee as attempts to occur make reasonable forecasts of probable actual loss because of the execution difficulty of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to estimating with exactness the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, damages which will result and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the amounts payable as a termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once fee pursuant to this Article IXSection 9.5 are reasonable and do not constitute a penalty. The Company acknowledges parties acknowledge that the agreements contained in this Section 9.5(b) 9.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, such agreements Parent and Merger Sub the Company would not enter have entered into this Agreement. If the Company ; accordingly, if either party fails to timely pay both the Termination Fee and Expenses in accordance with any amounts due by it pursuant to this Section 9.5(b) and9.5, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company party shall pay to Parent the other party its reasonable costs and expenses (including its reasonable attorneys’ fees and expensesdisbursements) incurred in connection with such suitparty’s enforcement of its rights hereunder, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until due on the date of payment amounts owed at the prime rate as announced in the effect from time to time and quoted in The Wall Street Journal in effect on the date during such payment was required to be made, after delivery to period. (f) If Parent is paid the Company Termination Fee, such fee will be the sole and exclusive remedy of reasonable documentation evidencing Parent in respect of any breach of, or inaccuracy contained in, the Company’s covenants, agreements, representations or warranties in this Agreement. If the Company is paid the Parent Termination Fee following a valid termination of the Agreement pursuant to Section 9.5(c), then such costs fees will the sole and expensesexcusive remedy of the Company in respect of any breach of, or inaccuracy contained in, Parent’s covenants, agreements, representations or warranties in this Agreement.

Effect of Termination and Abandonment. (a) In Except as provided in Section 9.5(b) and Section 9.5(c), in the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article IX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in this Agreement to the contrary, that (i) no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any fraud or willful or intentional breach any Willful and Material Breach of this Agreement and (ii) the provisions set forth in Section 7.11, this Section 9.5, Article X and the Confidentiality Agreement shall survive the termination of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal is terminated (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)I) was made to by either the Company or publicly disclosed, prior to either (1) with respect to any termination Parent pursuant to Section 9.2(a), (II) by either the date of such termination Company or (2) with respect to any termination Parent pursuant to Section 9.2(b), ) or (III) by Parent pursuant to Section 9.4(b) due to a breach by the Company of Section 7.2; and (B) (I) a bona fide Company Acquisition Proposal shall have been (1) made known to the Special Committee or publicly made or disclosed and (2) not withdrawn (which withdrawal shall be public if such Company Acquisition Proposal has been publicly made or disclosed) prior to the earlier of the date of the Company Meeting; and Stockholders Meeting (Bincluding any adjournment, recess or postponement thereof) and the time of termination of this Agreement and (II) concurrently with or within twelve (12) months of such termination termination, the Company or any of its Subsidiaries shall have consummated a Company Acquisition Proposal or entered into an Alternative Company Acquisition Agreement relating to consummatea Company Acquisition Proposal (whether or not, or shall have consummated or shall have approved or recommended in each case, such Company Acquisition Proposal is the same one as the Company Acquisition Proposal referred to the Company’s stockholders or otherwise not opposedin clause (B)(I)); provided that, a Competing Transaction for purposes of clause (substituting 35% for the B) of this Section 9.5(b)(i), references to “fifteen percent (15% threshold set forth %)” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B“Company Acquisition Proposal” shall be deemed to be references to “fifty percent (50%));”; or (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) this Agreement is terminated by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by ; then the Company no later than: shall pay to Parent (or its designee(s)), by wire transfer of same-day funds, a termination fee of $35,000,000 (the “Termination Fee”) (x) in the case of Section 9.5(b)(ii), no later than two (2) Business Days after the first date of such termination or (y) in the case of Section 9.5(b)(i), immediately prior to or substantially concurrent with the last to occur of the execution of an Alternative Acquisition Agreement events set forth in Section 9.5(b)(i). It is understood and agreed that in no event shall the Company be required to pay the Termination Fee on more than one occasion. (other than a confidentiality agreement), approval or recommendation to c) In the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause event that: (i) above(A) this Agreement is terminated (I) by either the Company or Parent pursuant to Section 9.2(a), (II) by either the Company or Parent pursuant to Section 9.2(c) or (III) by the Company pursuant to Section 9.3(b) due to a breach by Parent of Section 7.3; and (yB) on (I) a bona fide Parent Acquisition Proposal shall have been (1) made known to Parent or publicly made or disclosed and (2) not withdrawn (which withdrawal shall be public if such Parent Acquisition Proposal has been publicly made or disclosed) prior to the earlier of the date of the Parent Stockholders Meeting (including any adjournment, recess or postponement thereof) and the time of termination of this Agreement and (II) concurrently with or within twelve (12) months of such termination, Parent shall have consummated a Parent Acquisition Proposal or entered into an Alternative Parent Acquisition Agreement relating to a Parent Acquisition Proposal (whether or not, in each case, such Parent Acquisition Proposal is the same one as the Parent Acquisition Proposal referred to in clause (B)(I)); provided that, for purposes of clause (B) of this Section 9.5(c)(i), references to “fifteen percent (15%)” in the definition of “Parent Acquisition Proposal” shall be deemed to be references to “fifty percent (50%)”; or (ii) this Agreement is terminated by the Company pursuant to Section 9.3(a); then Parent shall pay to the Company (or its designee(s)), by wire transfer of same-day funds, a termination fee of $100,000,000 (the “Parent Termination Fee”) (x) in the case of clause (ii) above; and (z) Section 9.5(c)(ii), no later than two (2) Business Days after the date of such termination of this Agreement or (y) in the case of clause (iii) above. The Expenses shall be paid Section 9.5(c)(i), immediately prior to Parent within two (2) Business Days after demand therefor and delivery or substantially concurrent with the last to the Company of reasonable documentation therefor following the occurrence occur of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions events set forth in this Article IXSection 9.5(c)(i). Under It is understood and agreed that in no circumstances event shall Parent be required to pay the Parent Termination Fee be payable on more than once pursuant to this Article IX. The one occasion. (d) Each of the Company and Parent acknowledges that the agreements contained in this Section 9.5(b) and Section 9.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the Parties would not enter into this Agreement and the damages resulting from termination of this Agreement under circumstances where a Termination Fee or a Parent Termination Fee is payable are uncertain and incapable of accurate calculation and, therefore, each of the Termination Fee payable pursuant to Section 9.5(b) and the Parent Termination Fee payable pursuant to Section 9.5(c) is not a penalty but rather constitutes an amount akin to liquidated damages in a reasonable amount that will compensate Parent or the Company, as applicable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Mergers and the other transactions contemplated by this Agreement. If Accordingly, if (i) the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this due by it pursuant to Section 9.5(b) or (ii) Parent fails to promptly pay the Parent Termination Fee due by it pursuant to Section 9.5(c) and, in order to obtain such paymentpayment Parent or the Company, Parent as applicable, commences a suit Proceeding that results in a judgment against the Company or Parent, as applicable, for the Termination Fee and/or Expenses, as set forth in Section 9.5(b) or the case may beParent Termination Fee set forth in Section 9.5(c), the Company or Parent, as applicable, shall pay to Parent its reasonable or the Company, as applicable, their costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suitProceeding, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced set forth in the The Wall Street Journal Journal, Eastern Edition, in effect on the date such payment was required to be mademade from the date such payment was required to be made through the date of payment. (e) In the event that the Termination Fee is paid to Parent in circumstances in which such fee is payable pursuant to Section 9.5(b), after delivery payment of the Termination Fee, together with any costs and expenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of Parent and its Related Persons against the Company and its Related Persons (the “Company Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Mergers or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of the Company or any Company Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. The provisions of this Section 9.5(e) are intended to be for the benefit of, and shall be enforceable by, each of the Company Related Persons. (f) In the event that the Parent Termination Fee is paid to the Company in circumstances in which such fee is payable pursuant to Section 9.5(c), payment of reasonable documentation evidencing such the Parent Termination Fee, together with any costs and expensesexpenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of the Company and its Related Persons against Parent and its Related Persons (the “Parent Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Mergers or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of Parent or any Parent Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. The provisions of this Section 9.5(f) are intended to be for the benefit of, and shall be enforceable by, each of the Parent Related Persons.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer fee in immediately available funds, funds (in recognition of the fees and expenses incurred to date by Parent in connection with the matters contemplated hereby) of $7,300,000 26,000,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event if this Agreement is terminated: (i) (A) by Parent or the Company pursuant to as permitted by Section 9.2(a) or (b8.2(b), if the following shall have occurred: (AB) after the date of this Agreement and prior to the Company Stockholders Meeting, a Takeover third party has made a bona fide written Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made that has been publicly disclosed and not publicly withdrawn prior to the Company or publicly disclosed, prior to either Stockholders Meeting and (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (BC) within twelve (12) nine months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative any acquisition agreement or consummated any Acquisition Agreement Proposal (for purposes of the foregoing clause the term “Acquisition Proposal” has the meaning assigned to consummate, or shall have consummated or shall have approved or recommended such term in Section 6.2(d) except that the references to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth “20%” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)are deemed to be references to “50%”); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.3(a); or (iii) by Parent pursuant to Section 9.4(a8.4(a). The Termination Fee shall be paid promptly by the Company Company, but in no event later than: (x) two (2) Business Days business days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal acquisition agreement or the consummation of a Competing Transactionthe Acquisition Proposal, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days business days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee Company’s payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon against the termination Company and any of this Agreementits Subsidiaries and their respective directors, and that all officers, employees, agents, advisors or other damages representatives with respect to the breach of any covenant or remedies, at law or in equity (including provisional remedies), that might otherwise have been available agreement giving rise to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXARTICLE VIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesaffiliates); provided, howeverthat the provisions set forth in this Section 8.5, except as otherwise provided hereinSection 6.9 (Public Announcements), no such termination Section 6.13(b) (with respect to Parent’s reimbursement and indemnification obligations), Section 8.6 (Expenses), Section 9.1 (Non-Survival of Representations, Warranties, Covenants and Agreements), Section 9.2 (Notices), Section 9.5 (Entire Agreement; Assignment), Section 9.6 (Parties in Interest), Section 9.7 (Governing Law), Section 9.11 (Jurisdiction), Section 9.13 (Waiver of Jury Trial), the Confidentiality Agreements and the Guarantees (to the extent set forth therein) shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No survive the termination of this Agreement shall affect the obligations and abandonment of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsMerger pursuant to this ARTICLE VIII. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) (A) this Agreement is terminated by either Parent or the Company pursuant to Section 9.2(a8.2(a) or (bSection 8.2(b), if the following (B) an Acquisition Proposal, whether or not conditional, shall have occurred: been made public and not withdrawn after the date hereof but prior to the termination of this Agreement pursuant to Section 8.2(a) or, with respect to termination pursuant to Section 8.2(b), prior to the Stockholders Meeting, and (AC) after the date of this Agreement and prior to the date that is twelve (12) months following the termination of this Agreement, the Company Meeting, a Takeover consummates an Acquisition Proposal (substituting 35% for whether or not such Acquisition Proposal was the 15% threshold set forth same Acquisition Proposal referred to in the definition of Competing Transaction preceding clause (B)) (provided that for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a8.5(b)(i), the date of such termination or (2) with respect references to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the “15% threshold set forth %” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)Acquisition Proposal shall be deemed to be references to “50%”); (ii) this Agreement is terminated by the Company (A) Parent pursuant to Section 9.2(b8.4(a) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under or Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.4(b); or (iii) this Agreement is terminated by Parent the Company pursuant to Section 9.4(a8.3(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.;

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability (other than as set forth in Section 8.5(b) or obligation (c), or in the proviso at the end of this sentence) on the part of any party hereto (to this Agreement or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); providedPROVIDED, however, except as otherwise provided hereinHOWEVER, no such termination shall relieve any party hereto of to this Agreement from any liability or for damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees In the event that: (i) an Acquisition Proposal shall have been made to Arch or have been made directly to Arch' stockholders or noteholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter: (A) Arch' stockholders do not adopt this Agreement or the other transactions contemplated hereby at the Arch Stockholders Meeting or Arch' noteholders do not satisfy the Arch Minimum Condition with respect to the Arch Notes; (B) this Agreement is terminated by either Arch or PageNet pursuant to the terms of this Agreement and (C) Arch enters into an agreement with a third party with respect to an Acquisition Proposal within 12 months of the termination of this Agreement; (ii) this Agreement is terminated by PageNet pursuant to Section 8.3(a) or (b) provided that, with respect to Section 8.3(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to Arch' obligation in accordance with such Section to duly convene and complete the Arch Stockholders Meeting regarding the adoption of this Agreement and the matters set forth in Section 6.5(b) of this Agreement); or (iii) this Agreement is terminated by Arch pursuant to Section 8.4(f), then Arch and its Subsidiaries (jointly and severally) shall pay Parent PageNet a fee, by wire transfer in immediately available funds, of fee equal to $7,300,000 40.0 million (the “Termination Fee”) and "PAGENET TERMINATION FEE"), which amount shall pay all of the Expenses (as defined be in addition to any expenses to be paid pursuant to Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case 6.12, payable by wire transfer of same day funds on the date that the funds. A PageNet Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company payable pursuant to Section 9.2(a) 8.5(b)(i), or (b), if the following ii) shall have occurred: (A) be paid no later than two days after the date of this Agreement termination and prior a PageNet Termination Fee payable pursuant to the Company Meeting, Section 8.5(b)(iii) shall be paid simultaneously with (and such payment shall be a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)condition of) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a8.4(f). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company Arch acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub PageNet would not enter into this Agreement. If the Company Accordingly, if Arch fails to pay both promptly the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent PageNet commences a suit that which results in a judgment against the Company Arch for the Termination Fee and/or Expensesfee set forth in this paragraph (b), as the case may be, the Company Arch shall pay to Parent PageNet its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery . (c) In the event that: (i) an Acquisition Proposal shall have been made to PageNet or have been made directly to PageNet's stockholders or noteholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter: (A) PageNet's stockholders do not adopt this Agreement or the other transactions contemplated hereby at the PageNet Stockholders Meeting or PageNet's noteholders do not satisfy the PageNet Minimum Condition with respect to the Company PageNet Notes, and the Bankruptcy Court fails to enter the Final Confirmation Order which would otherwise enable the transactions set forth in this Agreement to occur without approval by the holders of reasonable documentation evidencing PageNet Shares; (B) this 69 Agreement is terminated by either Arch or PageNet pursuant to the terms of this Agreement and (C) either (x) PageNet executes and delivers an agreement with respect to an Acquisition Proposal or (y) an Acquisition Proposal with respect to PageNet is consummated, in either case, within 12 months of the date this Agreement is terminated; (ii) this Agreement is terminated by Arch pursuant to Section 8.4(a) or (b) provided that, with respect to Section 8.4(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to PageNet's obligation in accordance with such Section to duly convene and complete the PageNet Stockholders Meeting (unless the Bankruptcy Case has commenced or PageNet has stipulated to bankruptcy relief after the occurrence of an Involuntary Insolvency Event pursuant to Section 6.19(a)(iv) hereof) regarding the adoption of this Agreement and the approval of the matters set forth in Section 6.5(a) of this Agreement); (iii) the Prepackaged Plan is withdrawn without the prior written consent of Arch, or PageNet files any other plan of reorganization or amends, modifies or adds to any material provision of the Prepackaged Plan in each case without the prior written consent of Arch; (iv) any other plan of reorganization filed by a person other than PageNet is confirmed by the Bankruptcy Court; (v) PageNet files a motion to sell or otherwise transfer all or a substantial portion of its assets as part of a sale pursuant to Section 363 of the Bankruptcy Code without the prior written consent of Arch; or (vi) this Agreement is terminated by PageNet pursuant to Section 8.3(c) or (d), then PageNet and its Subsidiaries (jointly and severally) shall pay Arch a fee equal to $40.0 million (the "ARCH TERMINATION FEE"), which amount shall be in addition to any expenses to be paid pursuant to Section 6.12, payable by wire transfer of same day funds. A Arch Termination Fee payable pursuant to Section 8.5(c)(i), (ii), (iii), (iv) or (v) shall be paid no later than two days after the date of termination and a Arch Termination Fee payable pursuant to Section 8.5(c)(vi) shall be paid simultaneously with (and such payment shall be a condition of) termination pursuant to Section 8.3(c) or (d). PageNet acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Arch and Merger Sub would not enter into this Agreement. Accordingly, if PageNet fails to pay promptly the amount due pursuant to this Section 8.5(c) (and in any case in which the Bankruptcy Case has been commenced, the Initial Merger Order approves this provision), and, in order to obtain such payment, Arch commences a suit which results in a judgment against PageNet for the fee set forth in this paragraph (c), PageNet shall pay to Arch its costs and expensesexpenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made. 70 ARTICLE IX.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, no party to this Agreement (nor any of their respective officers, directors or agents) shall have any liability or further obligation to any other than party hereunder except as set forth in subsections (b) and (c) below and in Section 10.19.01, and except that termination shall not relieve a party from liability for any willful breach of this Agreement. In the event of termination of this Agreement by either Parent or Company pursuant to Section 8.01 hereof, the terminating party shall give prompt written notice thereof to the non-terminating party. (b) Parent and the Company agree that the Company shall pay to Parent the sum of $10,000,000 (the "TERMINATION FEE") solely if the Company or Parent terminates this Agreement pursuant to: (i) Section 8.01(d)(iv) or (ii) Section 8.01(e). (c) The Termination Fee required to be paid pursuant to Section 8.02(b) shall be payable by the Company to Parent on the same day as the termination referred to therein and payment of such Termination Fee shall be a condition precedent to the effectiveness of any termination by the Company. Notwithstanding the foregoing, (i) in no event shall more than one Termination Fee be payable and (ii) Parent may elect, by notice to the Company, to defer the payment of the Termination Fee from time to time for a period or periods of up to an aggregate of twelve months after the date such fee would otherwise be payable. In the event that the Company shall fail to pay any Termination Fee when due in accordance with this Article VIII, the amount of any such Termination Fee shall be increased to include the costs and expenses actually incurred (including, without limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.02. All payments under this Section 8.02 shall be made by wire transfer of immediately available funds to an account designated by Parent. (d) Upon termination of this Agreement, except for any amounts payable by the Company pursuant to this Section 8.02 and except as otherwise contemplated by this Section 8.02, this Agreement shall become void and of have no effect with no effect, without any liability or obligation on the part of any party hereto (or of any of its Affiliates, directors, officersofficers or stockholders; provided that, employeesnotwithstanding the foregoing, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination this shall not relieve any party hereto of any a breaching Party from liability or damages resulting from any fraud or for an uncured willful or intentional breach of this Agreementa representation, warranty or covenant or agreement giving rise to such termination. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement a claim is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, made against a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of party under this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a8.02(d), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), non-prevailing party shall reimburse the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% prevailing party for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on a claim made against the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesother party under this Section 8.02(d).

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in this Section 10.18.5 or Sections 5.2(c), 5.4, 6.11, 9.4 and 9.8) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that this Agreement is terminated pursuant to (i) Section 8.3(a) or Section 8.4(a), (ii) Section 8.4(b) arising out of a breach of a representation or warranty of the Company agrees or an action by the Company or failure to take an action by the Company which results in a breach of a covenant by the Company; or (iv) Section 8.4(c), (d) or (e)[(other than termination by Parent under Section 8.4(e) if the Dissenting Shares of Company Common Stock exceed ten percent (10%) of the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time)]; then the parties acknowledge that Parent will suffer direct and substantial damages, which damages cannot be determined with reasonable certainty. To compensate Parent for such damages, and in addition to any other remedies that Parent, Merger Sub or their affiliates may have with respect to this Agreement, the Company shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 (the “Termination Fee”) 1,200,000 and shall pay all of the Expenses (as defined reimburse Parent for reasonable expenses incurred in Section 10.14) of Parent actually incurred from third-parties relating to connection with the transactions contemplated by this Agreement (collectively, the "TERMINATION FEE") in immediately available funds prior to termination (in each case payable by wire transfer of same day funds on the date such termination. It is specifically agreed that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant amount to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXSection 8.5(b) represents liquidated damages and is not a penalty. The Company hereby waives any right to set-off or counterclaim against such amount. The Company acknowledges that the agreements agreement contained in this Section 9.5(b8.5(b) are is an integral part of the transactions contemplated by this Agreement, and that, without these agreementssuch agreement, the Company, Parent and Merger Sub would not enter have entered into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may beany amount required to be paid pursuant to this Section 8.5, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest from the date of termination of this Agreement on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment owed at the prime rate as announced in the The Wall Street Journal of Morgan Guaranty Trust Company of New York in effect on the date from time to time ▇▇▇▇▇g such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesperiod plus two percent.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability to pay the Termination Fee, Parent Fee or Parent Expenses pursuant to this Section 8.5, (ii) subject to the limitations set forth in Sections 8.5(e) and (f), no such termination shall relieve any of the parties of liability or damages resulting from any for fraud or willful or intentional breach and (iii) the agreements of the parties contained 6.10 (Expenses), Section 6.19 (Confidentiality), the indemnification and reimbursement provisions of Section 6.13(f), this Agreement. No 8.5, and Article IX, the Confidentiality Agreements and the Parent Fee Commitment Letter shall survive the termination of this Agreement shall affect (in the obligations case of the parties contained in Confidentiality Agreements and Parent Fee Commitment Letter, subject to the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsterms thereof). (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent or the Company (x) this Agreement is terminated pursuant to Section 9.2(a) or (b8.2(b), if the following (y) any Person shall have occurred: (A) publicly disclosed a bona fide Acquisition Proposal after the date of this Agreement hereof and prior to such termination, which Acquisition Proposal had not been publicly withdrawn prior to the Company Shareholders Meeting, a Takeover Proposal and (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (Bz) within twelve (12) months of after such termination the Company or any of its Subsidiaries shall have entered into an Alternative a definitive agreement with respect to any Acquisition Agreement Proposal or consummated any Acquisition Proposal (provided, that for purposes of this clause (z) the references to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth “20%” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)“Acquisition Proposal” shall be deemed to be references to “50%”); (ii) this Agreement is terminated by the Company (A) Parent pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.4(a); or (iii) this Agreement is terminated by Parent the Company pursuant to Section 9.4(a8.3(a). The Termination Fee shall be paid by ; then the Company no later than: shall: (xA) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; , promptly, but in no event later than three (y3) on Business Days, after the date on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, pay Parent the Termination Fee by wire transfer of termination of this Agreement immediately available funds; (B) in the case of clause (ii) above; and , promptly but in no event later than three (z) two (23) Business Days after termination the date of this Agreement such termination, pay Parent the Termination Fee by wire transfer of immediately available funds; and (C) in the case of clause (iii) above. The Expenses shall be paid , immediately prior to or substantially concurrently with such termination, pay Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described by wire transfer of immediately available funds (it being understood that in this Section 9.5(b). Notwithstanding anything in this Agreement no event shall the Company be required to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall pay the Termination Fee be payable on more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesone occasion).

Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.02(b), 8.02(c), 8.02(c) and 8.02(e), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXin accordance with Section 8.01, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinthat (x) subject to Sections 8.02(c) and 8.02(e), no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any fraud or willful or intentional breach Willful and Material Breach of its obligations set forth in this Agreement and (y) the provisions set forth in this Section 8.02 and the second and third sentences of Section 9.01 shall survive the termination of this Agreement. No In addition to the foregoing, no termination of this Agreement shall will affect the rights or obligations of any Party pursuant to the parties contained Guarantee, which rights, obligations and agreements set forth in the Confidentiality Agreement, all Guarantee will survive the termination of which obligations shall survive this Agreement in accordance with their respective terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a8.01(f) or (b), if the following shall have occurred: (A) after the date Change of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(aRecommendation); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement)then, approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) within two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses Company shall pay or cause to be paid a termination fee of $24,000,000 (the “Company Termination Fee”) to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. (c) Subject to Section 8.02(e), if this Agreement is terminated by the Company pursuant to Section 8.01(e) or Section 8.01(g), or by Parent pursuant to Section 8.01(b) if at such time the Company could have validly terminated this Agreement pursuant to Section 8.01(e) or Section 8.01(g), then within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages Parent shall pay or remedies, at law or cause to be paid a termination fee of $50,000,000 (the “Parent Termination Fee”) to the Company by wire transfer of immediately available funds to an account designated in equity (including provisional remedieswriting by the Company. In the event this Agreement is terminated by the Company pursuant to Section 8.01(h), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject pay to the payment Company, by wire transfer of any Termination Fee paid immediately available funds, an amount equal to that required to reimburse the Company and its Subsidiaries for all fees and expenses incurred in connection with the termination of this Agreement and the transactions contemplated hereby at or prior to the time of such termination, up to $10,000,000 in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company aggregate. (d) Each Party acknowledges that the agreements contained in this Section 9.5(b) 8.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub no Party would not enter have entered into this Agreement. If ; accordingly, if the Company or Parent fails to timely pay both the Parent or Company any amount due pursuant to Section 8.02(b) or Section 8.02(c), as applicable (any such amount due, a “Termination Fee and Expenses in accordance with this Section 9.5(b) Payment”), and, in order to obtain such payment, Parent the Party owed a Termination Payment commences a suit that results in a judgment against the Company for Party owing the applicable Termination Fee and/or Expenses, as the case may bePayment, the Company owing Party shall pay to Parent the owed Party its reasonable reasonable, documented and out-of-pocket costs and expenses (including reasonable attorneys’ fees and expensesof outside counsel) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment thereon at the prime rate as announced published in the The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by the owed Party) in effect on the date such payment Termination Payment was required to be madepaid from such date through the date of full payment thereof (any such amounts of costs, after delivery expenses and interest, the “Enforcement Costs”); provided, that in no event shall any Party be required to the Company of reasonable documentation evidencing such costs and expensespay Enforcement Costs in an aggregate amount exceeding $2,000,000.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXARTICLE VIII, this Agreement (other than as set forth in this Section 10.18.5 and in Section 9.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Related Parties); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of from any liability or (i) for damages resulting from the Willful Breach prior to such termination by any fraud party hereto or willful (ii) as provided in this Section 8.5 (including any obligation to pay, if applicable, (A) the Company Termination Fee pursuant to Section 8.5(b) or intentional breach of this Agreement. Section 8.5(c), (B) the No termination of this Agreement shall affect Vote Fee pursuant to Section 8.5(d) or (C) the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsCFIUS Termination Fee pursuant to Section 8.5(e)). (b) The If this Agreement is terminated (i) by Parent pursuant to Section 8.4(b) (Change in Recommendation; Termination for Willful Breach of Deal Protections) or (ii) by the Company agrees pursuant to Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two (2) Business Days after such termination in the case of clause (i) or concurrently with such termination in the case of clause (ii), pay to Parent a fee(or its designee), by wire transfer in of immediately available funds, of a fee equal to $7,300,000 200,000,000 (the “Company Termination Fee”). (c) If (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.2(a) (Termination Date) or Section 8.2(b) (Shareholder Vote) or (B) by Parent pursuant to Section 8.4(a) (Company Breach), (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement, a bona fide Acquisition Proposal shall have been publicly disclosed by the Company or publicly made to the Company or shall have been made directly to the Company’s stockholders generally and (iii) within twelve (12) months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this Section 8.5(c), the Company enters into a definitive agreement with respect to any Acquisition Transaction or consummates any Acquisition Transaction, then the Company shall pay the Company Termination Fee to Parent (or its designee) upon the date of consummation of such Acquisition Transaction (or, if such Acquisition Transaction is terminated before consummation, the consummation of any subsequent Acquisition Transaction that was entered into in connection with the termination of such Acquisition Transaction); provided that solely for purposes of this Section 8.5(c), all references in the definition of the Expenses “Acquisition Transaction” to “twenty percent (as defined in Section 10.1420%) of Parent actually incurred from third-parties relating or more” shall be deemed to the transactions contemplated by be references to “fifty percent (50%) or more”. (d) If this Agreement prior is terminated by Parent or the Company pursuant to termination Section 8.2(b) (in each case payable Shareholder Vote), then the Company shall pay Parent (or its designee) $61,000,000 (the “No Vote Fee”), by wire transfer of same day immediately available funds within two (2) Business Days following such termination by Parent or concurrent with such termination by the Company; provided, that if the No Vote Fee is paid to Parent (or its designee), it shall be credited toward, and shall reduce on a dollar for dollar basis the date that amount of, the Company Termination Fee payable under Section 8.5(c); provided, further, that Parent shall not have the right to the No Vote Fee pursuant to this Section 8.5(d) if (i) Parent at the time of such termination is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement and such material breach was the Expensesprimary cause of the failure to obtain the Company Requisite Vote. The existence of circumstances under Section 8.5(c) that could require the Company Termination Fee (less the No Vote Fee previously paid to Parent (or its designee) by the Company) to become subsequently payable by the Company shall not relieve the Company of its obligations to pay the No Vote Fee when payable under this Section 8.5(d) and the payment by the Company of the No Vote Fee shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee (less the No Vote Fee previously paid to Parent by the Company). Notwithstanding anything in this Agreement to the contrary, as applicable, is due as provided below), the Company Termination Fee shall be payable by the Company in the event lieu of a No Vote Fee if this Agreement is terminated:terminated by the Company pursuant to Section 8.2(b) and as of prior to such termination by the Company, Parent would have been entitled to terminate this Agreement pursuant to Section 8.4(b). (e) If this Agreement is terminated (i) by Parent or the Company pursuant to Section 9.2(a8.2(a) or (b)Termination Date) and, if as of the following shall have occurred: time of such termination, (A) after the date conditions set forth in at least one of Section 7.1(b)(iii), Section 7.1(c) (as a result of a Law or Order relating to CFIUS) or Section 7.2(e) (as a result of the imposition of a Substantial Detriment relating to CFIUS) shall have not have been satisfied or waived, (B) a material breach by the Company of this Agreement is not the primary cause of one or more of the conditions in Section 7.1(b)(iii), Section 7.1(c) (as a result of a Law or Order relating to CFIUS) or Section 7.2(e) (as a result of the imposition of a Substantial Detriment relating to CFIUS) to not be satisfied and prior (C) all other conditions to the Company Meeting, a Takeover Proposal (substituting 35% for obligations of Parent and Merger Sub to effect the 15% threshold Merger set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company 7.1 and Section 7.2 have been satisfied or publicly disclosed, prior to either waived (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree those conditions that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub their terms are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment satisfied at the prime rate as announced in Closing, such conditions would be satisfied if the The Wall Street Journal in effect on the date such payment was required Closing were to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.occur),

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in this Section 10.18.5, Sections 5.3(c) and 6.13, and Article IX) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors advisors, or other representatives); provided, however, that except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees In the event that (i) a bona fide Acquisition Proposal shall have been made or any person shall have publicly announced an intention (whether or not conditional) to pay Parent make a fee, by wire transfer bona fide Acquisition Proposal in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all respect of the Expenses (as defined in Section 10.14) Company or any of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event its subsidiaries and thereafter this Agreement is terminated: (i) terminated by either Parent or the Company pursuant to Section 9.2(a8.2(b) or by the Parent pursuant to Section 8.4(b) as a result of a material breach by the Company of any of the covenants set forth in Section 6.5 hereof (provided that within 9 months of the termination of this Agreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by the Company) or (b), if the following shall have occurred: (Aii) after the date of this Agreement and prior to is terminated by the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a8.3(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) this Agreement is terminated by Parent pursuant to Section 9.4(a8.4(a)(i). The Termination Fee shall be paid , or (iv) this Agreement is terminated by Parent pursuant to Section 8.4(a)(ii) and, within 9 months of such termination, any Acquisition Proposal by any third party is entered into, agreed to or consummated by the Company, then the Company no later than: shall pay Parent a termination fee of $223,203,810 in same-day funds, on the date of such termination, in the case of clause (xii) two or (2) Business Days after iii), or on the first to occur earlier of the execution date an agreement is entered into in respect of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, an Acquisition Proposal is consummated in the case of clause (i) above; or (yiv), provided, however, that notwithstanding the foregoing, Parent will not be entitled to a termination fee pursuant to clause (i) on or (iv) above in the event the Acquisition Proposal entered into, agreed to or consummated after such termination is an Acquisition Proposal whereby (A) the Company or any of its subsidiaries acquires a third party (the "EXEMPT ACQUIRED PERSON") pursuant to a merger, consolidation, recapitalization, share exchange or similar transaction in which the Company survives and the shareholders of the Exempt Acquired Person receive shares of Company Common Stock which, immediately following consummation of such merger, consolidation, recapitalization, share exchange or similar transaction, will represent no more than 45% of the issued and outstanding shares of Company Common Stock (or securities convertible or exchangeable into, or exercisable for Company Common Stock, whether upon the passage of time or otherwise) and (B) such Exempt Acquired Person, or any affiliate or affiliates thereof, was or were not the subject of an Acquisition Proposal at any time after the date of termination of this Agreement in the case of clause (ii) above; hereof and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid prior to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity . (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. c) The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these - 52 - 62 agreements, Parent and Merger Sub would not enter have entered into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this amount due pursuant to Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 8.5, the Company shall pay to Parent its reasonable costs and expenses (including reasonable including, attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until of termination of this Agreement on the date of payment amounts owed at the prime rate as announced in the The Wall Street Journal of Bank of America, N.A., in effect on the date from time to time during such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesperiod.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesaffiliates) except as provided in Section 8.5(b); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided hereinherein (including, for the avoidance of doubt, Section 9.5(d)), no such termination shall relieve any party hereto of any liability or for damages to the other party hereto resulting from any fraud or knowing and willful or intentional material breach of this Agreement. No Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent or (w) before the Company Acceptance Time, this Agreement is terminated pursuant to Section 9.2(a8.2(c) or (bOffer expires in accordance with its terms), if (x) the following Minimum Tender Condition shall not have been satisfied on the Expiration Date, (y) any Person shall have occurred: (A) made a bona fide Acquisition Proposal after the date of this Agreement and but prior to the Company Meeting, a Takeover Expiration Date and such Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made shall not have been publicly withdrawn prior to the Company or publicly disclosed, prior to either Expiration Date and (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (Bz) within twelve (12) 12 months of such termination the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to an Alternative Acquisition Agreement Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (z) the references to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the “15% threshold set forth %” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)“Acquisition Proposal” shall be deemed to be references to “50%”); (ii) this Agreement is terminated by the Company (A) Parent pursuant to clause (a) of Section 9.2(b8.4 (Change of Recommendation) and, prior to the date or clause (c) of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a)8.4; or (iii) [Reserved] (iv) this Agreement is terminated by Parent the Company pursuant to Section 9.4(a8.3(a) (Alternative Acquisition Agreement). The Termination Fee shall be paid by ; then the Company no later than: shall (xA) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; , within five (y5) on business days after the date of termination of this Agreement on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, (B) in the case of clause (ii) above; , no later than 3 (three) business days after the date of such termination and (zC) two (2) Business Days after termination of this Agreement in the case of clause (iiiiv) above. The Expenses shall be paid , immediately prior to or substantially concurrently with such termination, pay Parent within two (2or an affiliate of Parent designated in writing by Parent) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described (as defined below) (it being understood that in this Section 9.5(b). Notwithstanding anything no event shall the Company be required to pay the Termination Fee on more than one occasion) and shall promptly, but in this Agreement to the contrary, Parent and Merger Sub agree that payment no event later than two days after being notified of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be pay all of the sole and exclusive remedy of documented, reasonable out-of-pocket expenses incurred by Parent and or Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of and the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If Agreement up to a maximum aggregate amount of $1,000,000 (inclusive of any payments previously made pursuant to the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or ExpensesExpense Reimbursement, as the defined in Section 8.5(c) below) in each case may be, the Company shall pay payable by wire transfer of immediately available funds to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required an account to be made until the date of payment at the prime rate as announced designated by Parent. As used in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.this

Effect of Termination and Abandonment. (a) In the event of termination of that this Agreement is terminated and the abandonment of the Merger is abandoned pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its Affiliates or its or their respective directors, officers, employees, agents, legal and financial advisors employees or other representatives)stockholders; provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto (A) the Company of any liability to pay the Company Termination Fee, or damages resulting from Parent of any fraud liability to pay the Parent Termination Fee, in each case to the extent required pursuant to this Section 7.5 or willful (B) subject to Section 7.5(d), the Company of, or, subject to Section 7.5(f), Parent or intentional breach Merger Sub of, any liability for any Willful Breach of this Agreement prior to such termination, and (ii) the provisions listed in the second sentence of Section 8.1 shall survive the termination of this Agreement. No termination of The party desiring to terminate this Agreement pursuant to Section 7.2, 7.3 or 7.4 shall affect the obligations give written notice of such termination, including a description in reasonable detail of the reasons for such termination, to the other parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsSection 8.6, specifying the provision or provisions hereof pursuant to which such termination is effected. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent (x) this Agreement is terminated pursuant to Section 7.2(a), Section 7.2(b) or Section 7.4(b) (and with respect to Section 7.2(a) and Section 7.4(b), the Stockholder Approval has not been obtained), (y) any Person shall have publicly proposed, announced or made an Acquisition Proposal or, in the case of a termination pursuant to Section 7.4(b), an Acquisition Proposal shall have been provided to the Company’s management or the Company pursuant to Section 9.2(a) Board (or (bany committee thereof), if the following shall have occurred: (A) in either case after the date of this Agreement and prior to the Company Stockholders Meeting (and such Acquisition Proposal shall not have been withdrawn at least two (2) Business Days prior to such Stockholders Meeting), a Takeover Proposal (substituting 35% for the 15% threshold set forth and, in the definition case of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any a termination pursuant to Section 9.2(a7.4(b), prior to the date of breach that forms the basis for such termination or termination, and (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (Bz) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated an Acquisition Proposal or shall have approved entered into a definitive agreement for an Acquisition Proposal that is subsequently consummated (whether consummated within such twelve (12)-month period or recommended thereafter), then the Company shall, on the date such Acquisition Proposal is consummated, pay an amount equal to $37,675,000 (the Company’s stockholders “Company Termination Fee”), to Parent (or otherwise not opposedits designee) by wire transfer of same day funds to one or more accounts designated by Parent; provided, a Competing Transaction that for purposes of clauses (substituting 35% for y) and (z) above the 15% threshold set forth references to “20%” and “80%” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B));“Acquisition Proposal” shall be deemed to be references to “50%”; or (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) this Agreement is terminated by Parent pursuant to Section 9.4(a7.4(a). The , the Company shall pay the Company Termination Fee shall be paid by the Company no later than: to Parent (xor its designee) within two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of such termination by wire transfer of same day funds to one or more accounts designated by Parent. Without limiting any claim by Parent or Merger Sub for Willful Breach of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to by the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with and subject to Section 7.5(d), for the termination provisions set forth avoidance of doubt, in this Article IX. Under no circumstances event shall the Company be required to pay the Company Termination Fee be payable on more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesone occasion.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officersofficers or Affiliates) shall have any liability or further obligation to any other party to this Agreement, employeesexcept as provided in Sections 3.22 and 4.6, agentsthe last sentence of Section 5.2, legal Article VII, Article VIII, and financial advisors except to the extent that such termination results from the willful and material breach by a party of any of its representations, warranties, covenants or agreements set forth in this Agreement. (b) In the event of termination of this Agreement pursuant to Section 7.1(c), or by Parent pursuant to (i) 7.2(a) as a result of a failure to satisfy the conditions in Sections 6.2(a) (to the extent such failure results from a breach by the Company of its representations and warranties hereunder), 6.2(b) or 6.2(d)(ii); (ii) Section 7.2(b); or (iii) Section 7.2(c), then the Company shall, within five (5) business days thereafter, pay Parent by wire transfer of immediately available funds to an account specified by Parent an amount equal to all documented out of pocket reasonable fees and expenses incurred by Parent and Merger Sub since January 1, 1999 (including the reasonable fees and expenses of counsel, accountants, consultants and advisors, and any commitment fees and other representativesexpenses paid to prospective lenders) in connection with this Agreement and the Transactions contemplated hereby (the "Parent Documented Expenses"); provided, however, except as otherwise provided herein, no such termination the Parent Documented Expenses which the Company shall relieve any party hereto pay in the event of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement pursuant to Section 7.1(c) shall affect 36 not exceed $650,000 and the obligations Parent Documented Expenses which the Company shall pay in the event of termination of this Agreement pursuant to Section 7.2 shall not exceed $500,000; and provided, further, that the Company shall not be obligated to pay any Parent Documented Expenses if (i) Parent or the Merger Sub shall have failed to comply in any material respect with any of the parties covenants or agreements contained in this Agreement such that the Confidentiality Agreement, all Closing condition set forth in Section 6.3(b) would not be satisfied; or (ii) there exists a breach of which obligations shall survive any one or more representations or warranties of Parent or the Merger Sub contained in accordance with their termsthis Agreement in any material respect such that the closing condition set forth in Section 6.3(a) would not be satisfied. (bc) The In the event of termination of this Agreement pursuant to Section 7.1(d), the Company agrees to shall, within five (5) business days thereafter, pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day immediately available funds on to an account specified in writing by Parent a fee equal to the date amount, if any, by which $3.25 million exceeds the fee payable in such event by Textron Inc. to Parent under the Voting Agreement to which Textron Inc. is a party (the "Termination Fee"). (d) To the extent that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) has for any reason other than a material breach by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement not already been paid and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months after the termination of such termination this Agreement the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummateSubsidiaries, or shall have consummated any Company Affiliate enters into a definitive agreement with a Third Party with respect to a Takeover Proposal or shall have approved or recommended to the Company’s stockholders or otherwise not opposeda Takeover Proposal is effected, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by then the Company shall, within five (A5) pursuant business days after the consummation of such Takeover Proposal, pay Parent by wire transfer of immediately available funds to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) an account specified in writing by Parent pursuant to Section 9.4(a). The the Termination Fee shall be less any Parent Documented Expenses previously paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article IXCompany as provided in Section 8.1, this Agreement (other than as set forth in Section 10.1) shall forthwith become void and have no effect, and none of no effect with no liability Buyer, the Company, any of their respective Subsidiaries or obligation on any of the part of any party hereto (officers or directors of any of its directorsthem shall have any liability of any nature whatsoever hereunder, officers, employees, agents, legal and financial advisors or other representatives); provided, howeverin connection with the transactions contemplated hereby, except as otherwise provided hereinthat Sections 6.3 (Press Releases), no such termination shall relieve any party hereto 6.13 (Confidentiality Agreement) and 9.5 (Expenses) and this Section 8.2 and all other obligations of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No the parties specifically intended to be performed after the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent that, notwithstanding anything to the contrary herein, none of Buyer or the Company shall not unreasonably reject be relieved or released from any liabilities or damages arising out of its willful breach of any provision of this Agreement. (b) In the event this Agreement is terminated by Buyer pursuant to Section 8.1(f), the Company shall pay to Buyer an amount equal to $2,212,500 (the “Termination Fee”). (c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.1(b) or Section 8.1(e) due to the failure to obtain the approval of the Company’s stockholders at the Company Meeting, and (i) an Acquisition Proposal with respect to the Company shall have been announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to the Company Meeting or prior to the date specified in Section 8.1(b), as applicable, and (ii) within 12 months of such termination, the Company shall have (x) recommended to its stockholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(c), all references in the definition of Acquisition Transaction to “25%” shall instead refer to “50%.” (d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(c) and (i) an Acquisition Proposal with respect to the Company shall have been announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Buyer or during the cure period therefor provided in Section 8.1(c) and (ii) within 12 months of such termination, the Company shall have (x) recommended to its stockholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(d), all references in the definition of Acquisition Transaction to “25%” shall instead refer to “50%.” (e) Any payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee required to be payable more than once made pursuant to this Article IXSection 8.2 shall be made not more than two Business Days after the date of the event giving rise to the obligation to make such payment. The All payments under this Section 8.2 shall be made by wire transfer of immediately available funds to an account designated by Buyer. (f) Buyer and the Company acknowledges acknowledge that the agreements contained in this Section 9.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub Buyer would not enter have entered into this Agreement. If Accordingly, if the Company fails promptly to pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 8.2 and, in order to obtain such payment, Parent Buyer commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may beamount set forth in this Section 8.2, the Company shall pay to Parent Buyer its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate (as announced reported in the The Wall Street Journal or, if not reported therein, in effect another authoritative source) on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: (i) terminated by Parent or the Company pursuant to Section 9.2(a8.2(i), Section 8.2(ii) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed8.3 and, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or termination, any Person (2other than Parent) with respect has made to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative a bona fide Acquisition Agreement to consummate, Proposal or shall have consummated publicly announced an intention (whether or not conditional) to make a proposal or offer relating to an Acquisition Proposal, then the Company shall have approved pay Parent, no later than two days after the earlier to occur of (i) the date of entrance by the Company or recommended to the Company’s stockholders any of its Subsidiaries into an agreement concerning a transaction that constitutes an Acquisition Proposal or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) the date any Person (other than Parent) purchases 50% or more of the assets or any voting securities of the Company and its Subsidiaries (provided that the entering of any definitive agreement referred to in clauses (i) and (ii) of this sentence is entered into by the Company (A) pursuant or any of its Subsidiaries, or if there is no such agreement with respect to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) a purchase contemplated by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in ), any tender, exchange or other offer or arrangement for the case of clause (iii) above. The Expenses shall be paid to Parent Company's voting securities is first publicly disclosed, within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment 18 months of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), a termination fee of $500 million. In the event that might otherwise have been available to Parent and Merger Sub are waived this Agreement is terminated by Parent and Merger Sub upon or the acceptance of such payment; providedCompany pursuant to Section 8.2(iii), however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, then Parent shall not unreasonably reject pay the payment of any Termination Fee paid in connection with the termination of Company, no later than two days after this Agreement in accordance with the has been terminated, a termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part fee of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses$500 million.

Effect of Termination and Abandonment. (a) In the event of termination of If this Agreement is terminated and the abandonment of the Merger abandoned pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.18.1) shall become void and of no further effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal shareholders, legal, accounting and financial advisors or other representatives); provided, however, that, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that the Company agrees terminates this Agreement pursuant to pay Section 7.3(a) or Parent a fee, or Merger Sub terminates this Agreement pursuant to Sections 7.4(a) or 7.4(b) on account of any material breach by wire transfer in immediately available funds, Company of $7,300,000 Section 5.2 of this Agreement (the “Termination Fee”) and shall pay all date of termination in each of the Expenses (foregoing events shall be referred to in this Section 7.5 as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below"Option Trigger Date"), in Parent shall have an irrevocable option (the event this Agreement is terminated"Option") (which Option must be exercised within fifteen months (the "Option Period") after the Option Trigger Date) to: (i) by Parent or acquire all of the Company's right, title, and interest in and to MTBE Technology (as defined below) for a purchase price (payable in cash upon exercise of such Option) equal to the current fair market value of the MTBE Technology (which the Company pursuant to Section 9.2(a) or (band Parent agree is $1,500,000), provided that such purchase price shall be reduced by $300,000 if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date Option is exercised within six months of the Company MeetingOption Trigger Date; and (Bii) within twelve (12) months enter into a supply and services agreement with Company on Company's standard terms which provides that Parent shall have the right to purchase reactors from the Company at a purchase price such that the Company attains a 15% gross margin on the sale of such termination reactors, and that employees of the Company or any will assist Parent in marketing and developing applications of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the MTBE Technology at the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for 's standard fees. . "Gross margin" purposes of this Section 9.5(b)(i)(B)); (ii) by subsection is applied to and calculated based on the Company (A) pursuant sum of direct labor, fringe, and direct costs only. Parent shall have the right to Section 9.2(b) and, prior to the date audit such charges within one year after completion of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred project involved. Any over- or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses under-billing shall be paid to Parent within two (2) Business Days the party entitled thereto promptly after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence completion of the termination event giving rise to audit with interest at Citibank, N.A.'s prime rate of interest. The Option and the Termination Fee payment obligation described Company's obligations in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, connection therewith shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available collectively referred to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses"Break-up Arrangements".

Effect of Termination and Abandonment. (a) In Except as provided in Section 9.5(b) and Section 9.5(c), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in this Agreement to the contrary, that (i) no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any fraud or willful or intentional breach any Willful and Material Breach of this Agreement and (ii) the provisions set forth in Section 7.10, this Section 9.5, Article X and the Confidentiality Agreement shall survive the termination of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.2(a9.3(c); (ii) or this Agreement is terminated by Parent pursuant to Section 9.4(a); or (b), if the following shall have occurred: iii) (A) after the date of this Agreement is terminated by Parent pursuant to Section 9.4(d); and prior to the (B) (I) a bona fide Company Meeting, a Takeover Acquisition Proposal shall have been (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)1) was made known to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination made or disclosed and (2) not withdrawn (which withdrawal shall be public if such Company Acquisition Proposal has been publicly made or disclosed) prior to the time of termination of this Agreement and (II) concurrently with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) or within twelve (12) months of such termination termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated a Company Acquisition Proposal or shall have approved entered into a definitive Alternative Company Acquisition Agreement relating to a Company Acquisition Proposal that is subsequently consummated (whether or recommended not, in each case, such Company Acquisition Proposal is the same one as the Company Acquisition Proposal referred to the Company’s stockholders or otherwise not opposedin clause (B)(I)); provided that, a Competing Transaction for purposes of clause (substituting 35% for the 15% threshold set forth B) of this Section 9.5(b)(iii), references to “twenty percent (20%)” in the definition of Competing Transaction for purposes “Company Acquisition Proposal” shall be deemed to be references to “fifty percent (50%)”; then the Company shall pay to Parent (or its designee(s)), by wire transfer of same-day funds, a termination fee of $87,610,000 (the “Termination Fee”) (x) in the case of Section 9.5(b)(i), substantially concurrently with the termination of this Agreement pursuant to Section 9.5(b)(i)(B9.3(c); (y) in the case of Section 9.5(b)(ii), no later than two (2) Business Days after the date of termination of this Agreement pursuant to Section 9.4(a); and (z) in the case of Section 9.5(b)(iii), immediately prior to or substantially concurrent with the last to occur of the events set forth in Section 9.5(b)(iii). It is understood and agreed that in no event shall the Company be required to pay the Termination Fee on more than one occasion. (c) In the event that: (i) this Agreement is terminated by Parent pursuant to Section 9.4(c); (ii) this Agreement is terminated by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) (A) this Agreement is terminated by either the Company or Parent pursuant to Section 9.4(a). The Termination Fee 9.2(b) under circumstances in which the Parent Majority of the Minority Stockholder Approval is not obtained; and (B) (I) a bona fide Parent Acquisition Proposal shall have been (1) made known to the Special Committee or publicly made or disclosed and (2) not withdrawn (which withdrawal shall be paid by public if such Parent Acquisition Proposal has been publicly made or disclosed) prior to the date of the Parent Stockholders Meeting and (II) concurrently with or within twelve (12) months of such termination, Parent shall have consummated a Parent Acquisition Proposal or entered into a definitive Alternative Parent Acquisition Agreement relating to a Parent Acquisition Proposal that is subsequently consummated (whether or not, in each case, such Parent Acquisition Proposal is the same one as the Parent Acquisition Proposal referred to in clause (B)(I)); provided that, for purposes of clause (B) of this Section 9.5(c)(iii), references to “twenty percent (20%)” in the definition of “Parent Acquisition Proposal” shall be deemed to be references to “fifty percent (50%)”; then Parent shall pay to the Company no later than: (or its designee(s)), by wire transfer of same-day funds, a termination fee of $34,070,000 (the “Parent Termination Fee”) (x) in the case of Section 9.5(c)(i), substantially concurrently with the termination of this Agreement pursuant to Section 9.4(c); (y) in the case of Section 9.5(c)(ii), no later than two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) abovepursuant to Section 9.3(a); and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid Section 9.5(c)(iii), immediately prior to Parent within two (2) Business Days after demand therefor and delivery or substantially concurrent with the last to the Company of reasonable documentation therefor following the occurrence occur of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions events set forth in this Article IXSection 9.5(c)(iii). Under It is understood and agreed that in no circumstances event shall Parent be required to pay the Parent Termination Fee be payable on more than once pursuant to this Article IX. The one occasion. (d) Each of the Company and Parent acknowledges that the agreements contained in this Section 9.5(b) and Section 9.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the Parties would not enter into this Agreement and the damages resulting from termination of this Agreement under circumstances where a Termination Fee or a Parent Termination Fee is payable are uncertain and incapable of accurate calculation and, therefore, each of the Termination Fee payable pursuant to Section 9.5(b) and the Parent Termination Fee payable pursuant to Section 9.5(c) is not a penalty but rather constitutes an amount akin to liquidated damages in a reasonable amount that will compensate Parent or the Company, as applicable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger and the other transactions contemplated by this Agreement. If Accordingly, if (i) the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this due by it pursuant to Section 9.5(b) or (ii) Parent fails to promptly pay the Parent Termination Fee due by it pursuant to Section 9.5(c) and, in order to obtain such paymentpayment Parent or the Company, Parent as applicable, commences a suit Proceeding that results in a judgment against the Company or Parent, as applicable, for the Termination Fee and/or Expenses, as set forth in Section 9.5(b) or the case may beParent Termination Fee set forth in Section 9.5(c), the Company or Parent, as applicable, shall pay to Parent its reasonable or the Company, as applicable, their costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suitProceeding, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced set forth in the The Wall Street Journal Journal, Eastern Edition, in effect on the date such payment was required to be mademade from the date such payment was required to be made through the date of payment. (e) In the event that the Termination Fee is paid to Parent in circumstances in which such fee is payable pursuant to Section 9.5(b), after delivery payment of the Termination Fee, together with any costs and expenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of Parent and its Related Persons in such capacity against the Company and its Related Persons in such capacity (the “Company Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Merger or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of the Company or any Company Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided that nothing in this Section 9.5(e) shall relieve any Party of any liability or damages resulting from fraud or any Willful and Material Breach of this Agreement. The provisions of this Section 9.5(e) are intended to be for the benefit of, and shall be enforceable by, each of the Company Related Persons. (f) In the event that the Parent Termination Fee is paid to the Company in circumstances in which such fee is payable pursuant to Section 9.5(c), payment of reasonable documentation evidencing such the Parent Termination Fee, together with any costs and expensesexpenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of the Company and its Related Persons in such capacity against Parent and its Related Persons in such capacity (the “Parent Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Merger or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of Parent or any Parent Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided that nothing in this Section 9.5(f) shall relieve any Party of any liability or damages resulting from fraud or any Willful and Material Breach of this Agreement. The provisions of this Section 9.5(f) are intended to be for the benefit of, and shall be enforceable by, each of the Parent Related Persons.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (ba) The Company agrees to pay Parent a fee, by wire transfer fee in immediately available funds, funds (in recognition of the fees and expenses incurred to date by Parent in connection with the matters contemplated hereby) of $7,300,000 26,000,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event if this Agreement is terminated: (i) (A) by Parent or the Company pursuant to as permitted by Section 9.2(a) or (b8.2(b), if the following shall have occurred: (AB) after the date of this Agreement and prior to the Company Stockholders Meeting, a Takeover third party has made a bona fide written Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made that has been publicly disclosed and not publicly withdrawn prior to the Company or publicly disclosed, prior to either Stockholders Meeting and (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (BC) within twelve (12) nine months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative any acquisition agreement or consummated any Acquisition Agreement Proposal (for purposes of the foregoing clause the term “Acquisition Proposal” has the meaning assigned to consummate, or shall have consummated or shall have approved or recommended such term in Section 6.2(d) except that the references to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth “20%” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)are deemed to be references to “50%”); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.3(a); or (iii) by Parent pursuant to Section 9.4(a8.4(a). The Termination Fee shall be paid promptly by the Company Company, but in no event later than: (x) two (2) Business Days business days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal acquisition agreement or the consummation of a Competing Transactionthe Acquisition Proposal, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days business days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee Company’s payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon against the termination Company and any of this Agreementits Subsidiaries and their respective directors, and that all officers, employees, agents, advisors or other damages representatives with respect to the breach of any covenant or remedies, at law or in equity (including provisional remedies), that might otherwise have been available agreement giving rise to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability to pay the Termination Fee or damages resulting from Parent Fee pursuant to this Section 8.5, (ii) subject to the limitations set forth in Section 8.5(d), no such termination shall relieve any fraud or of the parties of liability for any willful or intentional and material breach of this Agreement. No termination of this Agreement shall affect prior to termination; and (iii) the obligations agreements of the parties contained in the last sentence of Section 6.6 (Confidentiality), Section 6.10 (Expenses), the indemnification and reimbursement provisions of Section 6.13(b), this Section 8.5, Article IX, the Confidentiality Agreement, all of which obligations Agreements and the Guarantees shall survive the termination of this Agreement (in accordance with their termsthe case of the Confidentiality Agreements and Guarantees, subject to the terms thereof). (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent or the Company (x) this Agreement is terminated pursuant to Section 9.2(a8.2(b), Section 8.2(a) (in the case of Section 8.2(a) only, before obtaining the Company Requisite Vote) or Section 8.4(b) (bas a result of any willful breach), if the following (y) any Person shall have occurred: (A) publicly disclosed or shall have made known to the Company's Board of Directors a bona fide Acquisition Proposal after the date of this Agreement hereof and prior to the Company Meetingsuch termination (unless irrevocably and, a Takeover if such Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or is public, publicly disclosed, withdrawn prior to either (1) with respect to any termination pursuant to Section 9.2(asuch termination), the date of such termination or and (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (Bz) within twelve (12) months of after such termination the Company or any of its Subsidiaries shall have entered into a definitive agreement with respect to an Alternative Acquisition Agreement Proposal or consummated an Acquisition Proposal (provided that for purposes of this clause (z) the references to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth “20%” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)“Acquisition Proposal” shall be deemed to be references to “50%”); (ii) this Agreement is terminated by the Company (A) Parent pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.4(a); or (iii) this Agreement is terminated by Parent the Company pursuant to Section 9.4(a8.3(a). The Termination Fee shall be paid by ; then the Company no later than: shall: (xA) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; , promptly, but in no event later than three (y3) on Business Days, after the date on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, pay Parent the Termination Fee by wire transfer of termination of this Agreement immediately available funds; (B) in the case of clause (ii) above; and , promptly but in no event later than three (z) two (23) Business Days after termination the date of this Agreement such termination, pay Parent the Termination Fee by wire transfer of immediately available funds; provided, however, in the event the Termination Fee includes any Expense Reimbursement, the portion of the Termination Fee representing the Expense Reimbursement is payable within two Business Days after receipt from Parent of an invoice therefor; and (C) in the case of clause (iii) above. The Expenses shall be paid , immediately prior to or substantially concurrently with such termination, pay Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described by wire transfer of immediately available funds (it being understood that in this Section 9.5(bno event shall the Company be required to pay the Termination Fee on more than one occasion). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject in the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall event the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may beincludes any Expense Reimbursement, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount portion of the Termination Fee and/or Expenses, representing the Expense Reimbursement is payable within two Business Days after receipt from the date such payment was required to be made until the date Parent of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesan invoice therefor.

Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) and (c) below, in the event of termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful or intentional any breach of this Agreement. No Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination) and thereafter this Agreement is terminated by Parent pursuant to Section 8.4(b) or by either Parent or the Company pursuant to Section 9.2(a) or (b8.2(a), if the following shall have occurred:; (Aii) this Agreement is terminated by Parent pursuant to Section 8.4(a); or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a); then the Company shall promptly, but in no event later than two (2) days after the date of this Agreement and prior such termination, pay Parent a termination fee of $115,600,000 (the “Termination Fee” ); provided, however, that (A) the Termination Fee to the Company Meeting, a Takeover Proposal be paid pursuant to clause (substituting 35% for the 15% threshold iii) shall be paid as set forth in the definition Section 8.3(a) payable by wire transfer of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meetingimmediately available funds; and (B) no Termination Fee shall be payable to Parent pursuant to clause (i) of this paragraph (b) unless and until, within twelve (12) months of such termination termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to consummate, or shall have an Acquisition Proposal and such Acquisition Proposal is consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% “50%” for the “15% threshold set forth %” in the definition thereof; and for the avoidance of Competing Transaction doubt, such Acquisition Proposal shall include any license (whether exclusive or non-exclusive) pertaining to commercialization rights for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant Key Product, IDX-21459 or Samatasvir and such Termination Fee payable to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The clause (i) of this paragraph (b) shall be payable promptly after the consummation of such Acquisition Proposal (but in no event later than five (5) days after such consummation) and (C) such Termination Fee payable to Parent pursuant to clause (i) of this paragraph (b) shall be net of any Parent Expenses paid by the Company to Parent pursuant to the immediately following sentence. In the event that this Agreement is terminated pursuant to Sections 8.2(a) by Parent or the Company and at the time of such termination the only Tender Offer Conditions that have not been satisfied or waived are the Minimum Condition and the delivery of the certificates referenced in clause (5) of Exhibit A, then the Company shall reimburse Parent promptly upon demand, but in no event later than: (x) than two (2) Business Days business days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination such demand, by wire transfer of immediately available funds, all reasonable, documented out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, hedging counterparties, experts and consultants) (“Parent Expenses”) incurred by Parent, Merger Sub or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement; provided that the Company shall not be obligated to reimburse Parent for Parent Expenses in the case excess of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above$5,000,000. The reimbursement of Parent Expenses pursuant to the immediately preceding sentence shall be paid to Parent within two (2) Business Days after demand therefor and delivery to not relieve the Company of reasonable documentation therefor following the occurrence of the termination event giving rise any subsequent obligation to the pay any applicable Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. Section 8.5(b) (less the amount of Parent Expenses previously reimbursed by the Company). (c) The Company acknowledges parties acknowledge that the agreements contained in this Section 9.5(b) 8.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the parties would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this amount due pursuant to Section 9.5(b8.5(b) and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may beamount set forth in Section 8.5(b) or any portion thereof, the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the such amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment or portion thereof at the prime rate as announced in the The Wall Street Journal of Citibank, N.A. in effect on the date such payment was required to be mademade through the date of payment. Parent’s right to receive the Termination Fee and/or Parent Expenses from the Company pursuant to this Section 8.5 and Parent’s right to specific performance pursuant to Section 9.4(c) shall be the sole and exclusive remedies of Parent, after delivery Merger Sub and their respective Affiliates against the Company, its Subsidiaries and any of their respective former, current, or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Offer, the Merger or the other transactions contemplated by this Agreement to be consummated, and upon payment of such amount, none of the Company, its Subsidiaries or any of their respective former, current, or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Offer, the Merger or the other transactions contemplated by this Agreement; provided, however, that in no event will the Parent or Merger Sub be entitled to both the payment of the Termination Fee and specific performance of this Agreement. The parties hereto expressly acknowledge and agree that: (i) upon any such termination of this Agreement, the payment of the Termination Fee pursuant to Section 8.5(b) shall be in full and complete satisfaction of any and all monetary damages of Parent and Merger Sub arising out of or related to this Agreement, the Offer, the Merger or the other transactions contemplated by this Agreement (including any breach by the Company), the termination of this Agreement, the failure to consummate the Offer, the Merger or the other transactions contemplated by this Agreement, and any claims or actions under applicable Law arising out of any such breach, termination or failure; and (ii) in no event shall Parent or Merger Sub be entitled to seek or obtain any recovery or judgment in excess of the Termination Fee (plus, in the case the Termination Fee is not timely paid, the amounts described in the first sentence of this Section 8.5(c)) against the Company, its Subsidiaries or any of their respective former, current, or future general or limited partners, stockholders, directors, officers, employees, managers, members, Affiliates, agents or other Representatives or any of their respective assets, and in no event shall Parent or Merger Sub be entitled to seek or obtain any other damages of any kind, including consequential, special, indirect or punitive damages for, or with respect to, this Agreement or the transactions contemplated hereby (including any breach by the Company), the termination of this Agreement, the failure to consummate the Offer, the Merger or the other transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure; provided, however, that this Section 8.5(c) shall not limit the right of the parties hereto to specific performance of this Agreement pursuant to Section 9.4(c) prior to the Company termination of reasonable documentation evidencing such costs and expensesthis Agreement in accordance with its terms.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVI, no party to this Agreement shall have any liability or further obligation to any other party hereunder except as set forth in this Section 6.02 and Section 7.01. (i) If this Agreement is terminated by Acquiror due to a breach of a representation or warranty by Bancshares contained in Article II of this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages a breach resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(aevent(s) or (b), if the following shall have occurred: (Acircumstance(s) occurring or arising after the date of this Agreement and prior such breach was outside of the control of Bancshares or the Bank) or a breach by Bancshares of a covenant or undertaking made by it in Article IV of this Agreement, Bancshares shall be liable to Acquiror for $350,000. Any payment to Acquiror shall be without prejudice to any other rights or remedies as may be available to Acquiror under Section 6.02(d) below, provided however that to the Company Meeting, extent Acquiror is entitled to be paid both a Takeover Proposal (substituting 35% for the 15% threshold fee set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)6.02(b)(i) was made to as well as the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold Termination Fee set forth in Section 6.2(d) below, in no event will the definition amount payable to Acquiror pursuant to Sections 6.02(b)(i) and (d) exceed $1.0 million. Notwithstanding anything in this Section 6.02(b)(i) to the contrary, nothing shall be construed herein to limit Acquiror's rights to recover any liabilities or damages arising out of Competing Transaction for purposes Bancshares' or the Bank's breach of any provision of this Section 9.5(b)(i)(B));Agreement, regardless of whether such breach was outside the control of Bancshares or the Bank. (ii) If this Agreement is terminated by the Company (A) pursuant Bancshares due to Section 9.2(b) and, prior to the date a breach of the Company Meeting, any event giving rise to Parent’s right a representation or warranty by Acquiror contained in Article III of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition this Agreement (other than a confidentiality agreement), approval breach resulting from event(s) or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal circumstance(s) occurring or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on arising after the date of termination this Agreement and such breach was outside of the control of Acquiror) or a breach by Acquiror of a covenant or undertaking made by it in Article IV of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses Agreement, Acquiror shall be paid liable to Parent within two (2) Business Days after demand therefor and delivery Bancshares for $350,000, which shall be payable pursuant to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b)Escrow Agreement. Notwithstanding anything in this Agreement Section 6.02(b)(ii) to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, nothing shall be the sole and exclusive remedy construed herein to limit Bancshares' rights to recover any liabilities or damages arising out of Parent and Merger Sub upon the termination Acquiror's breach of any provision of this Agreement, and that all other damages or remedies, at law or in equity regardless of whether such breach was outside the control of Acquiror. (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of c) If this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once is terminated by either Acquiror pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b6.01(b)(iii) are an integral part or Bancshares pursuant to Section 6.01(c)(iii) due to a failure to receive all requisite regulatory approvals hereof and such failure relates solely to facts or circumstances relating to Acquiror or Acquiror's business plan submitted to such regulatory agencies (and not relating to Bancshares, Bank or their respective financial condition, results of the transactions contemplated by this Agreementoperations or business, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or ExpensesBank's non-performing or non-accrual loans or the amount or level of the Bank's regulatory capital, from including any requirement for the Bank to maintain regulatory capital in excess of that contemplated in the Acquiror's business plan solely as a result of a material deterioration in the condition of the Bank after the date such hereof), Acquiror shall be liable to Bancshares for $350,000, which shall be payable pursuant to the Escrow Agreement. Any payment was by Acquiror to Bancshares pursuant to this Section 6.02(c) shall not be duplicative of (but shall be paid in lieu of) any amount that might be required to be made until the date paid by Acquiror pursuant to Section 6.02(b)(ii) due to a breach of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.Section 4.06

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXSection 8, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that this Agreement is terminated (i) by the Company agrees pursuant to Section 8.3(a) or (ii) by Parent pursuant to Section 8.4(a) or (iii) by either party pursuant to Section 8.2(ii), then the Company shall promptly, but in no event later than two business days after the date of such termination or, if applicable, the event set forth in the proviso below, pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable 1.2 million by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXfunds. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this paragraph (b), the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime lending rate as announced in the The Wall Street Journal of Citibank, N.A. in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE IX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful or intentional breach of this Agreement. No , and (ii) the provisions set forth in the second sentence of Section 10.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 23,000,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event of the termination of this Agreement is terminatedpursuant to: (i) by Parent or the Company Section 9.1(c) (other than pursuant to Section 9.2(a9.1(c)(v) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B9.1(c)(vi)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a9.1(d)(ii); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by 9.1(b)(iii) or, if the Company no later than: (x) two (2) Business Days after the first Requisite Vote has not been obtained prior to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remediesSection 9.1(b)(i), in either case, if, at law or in equity prior to the time of such failure, there shall have been publicly announced an Acquisition Proposal relating to the Company, and within twelve (including provisional remedies12) months after such termination there shall have been consummated, or a definitive agreement shall have been entered into providing for, an Acquisition Proposal (provided that, for purposes of this Section 9.2(b)(iii), that might otherwise have been available all references to Parent and Merger Sub are waived by Parent and Merger Sub upon “15%” in the acceptance definition of such payment; provided, however, that prior “Acquisition Proposal” shall be deemed to payment of such Termination Fee be references to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX“50%”). The Company acknowledges that the agreements contained in this Section 9.5(b9.2(b) are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 9.2(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 9.2(b) or any portion of such fee, the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. in effect on the date such payment was required to be made, after delivery made through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company of reasonable documentation evidencing such costs and expensesaccepted by Parent pursuant to this Section 9.2(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE IX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful or intentional breach of this Agreement. No , and (ii) the provisions set forth in the second sentence of Section 10.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 23,000,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event of the termination of this Agreement is terminatedpursuant to: (i) by Parent or the Company Section 9.1(c) (other than pursuant to Section 9.2(a9.1(c)(v) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B9.1(c)(vi)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a9.1(d)(ii); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by 9.1(b)(iii) or, if the Company no later than: (x) two (2) Business Days after the first Requisite Vote has not been obtained prior to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remediesSection 9.1(b)(i), in either case, if, at law or in equity prior to the time of such failure, there shall have been publicly announced an Acquisition Proposal relating to the Company, and within twelve (including provisional remedies12) months after such termination there shall have been consummated, or a definitive agreement shall have been entered into providing for, an Acquisition Proposal (provided that, for purposes of this Section 9.2(b)(iii), that might otherwise have been available all references to Parent and Merger Sub are waived by Parent and Merger Sub upon “15%” in the acceptance definition of such payment; provided, however, that prior “Acquisition Proposal” shall be deemed to payment of such Termination Fee be references to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX“50%”). The Company acknowledges that the agreements contained in this Section 9.5(b9.2(b) are an integral part of the transactions contemplated by this AgreementTransactions, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 9.2(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 9.2(b) or any portion of such fee, the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of J▇ ▇▇▇▇▇▇ C▇▇▇▇ & Co. in effect on the date such payment was required to be made, after delivery made through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company of reasonable documentation evidencing such costs and expensesaccepted by Parent pursuant to this Section 9.2(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, this Agreement (other than as set forth in Section 10.1) shall become becomes void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided hereinin this Agreement, no such termination shall relieve relieves any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect affects the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees shall pay to pay Parent a fee, by wire transfer in immediately available funds, of fee equal to $7,300,000 5,250,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable ), by wire transfer of same day immediately available funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurredoccurs: (A) after the date of this Agreement and prior to the Company Meeting, any Third Party makes a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A9.5(b)(i)) was made to the Company or publicly discloseddiscloses or announces an intention (whether or not conditional and whether or not withdrawn) to make a Takeover Proposal, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered enters into an Alternative Acquisition Agreement to consummate, or shall have consummated consummates, or shall have approved approves or recommended recommends to the Company’s stockholders or otherwise does not opposedoppose, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B))with such Third Party; (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) a Company Triggering Event shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In Except as provided in paragraph (b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in the foregoing to the contrary, that (i) no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or any willful or intentional material breach of this Agreement. No Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: (i) by Parent or either the Company or Sponsor pursuant to Section 9.2(a8.2(a) (and, at the time of such termination pursuant to Section 8.2(a), any of the conditions set forth in Section 7.1(a), Section 7.1(c) or (bSection 7.1(e) shall not have been met), if Section 8.2(c) or Section 8.2(d) and, at the following time of such termination, the board of directors of the Company or any duly authorized committee thereof shall not have occurred:made and not withdrawn a Change of Recommendation, then promptly, but in no event later than three (3) business days, after the date of such termination, the Company shall pay to Sponsor all of the reasonable and documented out-of-pocket expenses, including those of the Paying Agent, incurred by Sponsor or any of its Affiliates in connection with this Agreement and the Merger and the other transactions contemplated by this Agreement (including any fees payable by and any other out-of-pocket expenses of Sponsor or any of its Affiliates in connection with the Debt Financing), in an amount not to exceed $17,000,000 (the “Sponsor Expense Reimbursement”); (ii) by either the Company or Sponsor pursuant to Section 8.2(a) (and, at the time of such termination pursuant to Section 8.2(a), any of the conditions set forth in Section 7.1(a), Section 7.1(c) or Section 7.1(e) shall not have been met), Section 8.2(c) or Section 8.2(d) (provided that, at the time of such termination pursuant to Section 8.2(c) or Section 8.2(d), the board of directors of the Company or any duly authorized committee thereof shall not have made and not withdrawn a Change of Recommendation) and, in each case, either (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect a bona fide Acquisition Proposal shall have been made to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries or SunEdison or a substantial portion of its creditors, or any Person shall have entered into an Alternative publicly announced a bona fide Acquisition Agreement to consummate, or Proposal and such Acquisition Proposal shall not have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, been publicly withdrawn prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contraryapplicable right of termination, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 8.5(b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in this Agreement to the contrary, (i) no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any fraud or willful or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in this Section 8.5, Article IX and Annex A shall survive the termination of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: (i) by Parent or either the Company or Parent pursuant to Section 9.2(a8.2(a) (Outside Date); by either the Company or Parent pursuant to Section 8.2(b) (bRequisite Company Vote Not Obtained); or by Parent pursuant to Section 8.3(b) (Company Material Breach)), if the following shall have occurred: and, in each case, (A) after the date of this Agreement and prior to the Company Meetingsuch termination, a Takeover bona fide Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was shall have been made to the Company or any of its Subsidiaries or publicly disclosed, prior to either any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (1) at least five (5) Business Days prior to the date of termination, with respect to any termination pursuant to Section 9.2(a), the date of such termination 8.2(a) (Outside Date) or Section 8.3(b) (Company Material Breach) or (2) with respect at least five (5) Business Days prior to any termination pursuant to Section 9.2(b), the date of the Company Shareholders Meeting, with respect to termination pursuant to pursuant to Section 8.2(b) (Requisite Company Vote Not Obtained); and (B) provided that for purposes of this Agreement, an Acquisition Proposal with respect to the Company shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatewith respect to, or shall have consummated consummated, an Acquisition Proposal made by or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment behalf of such Termination FeePerson or any of its Affiliates, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.2(b), 8.2(c), 8.2(d) and 8.2(e), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXin accordance with Section 8.1, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided herein, that (x) no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud willful and material breach of its obligations set forth in this Agreement and (y) the provisions set forth in this Section 8.2, Section 6.16(d) and the second and third sentences of Section 9.1 shall survive the termination of this Agreement. For purposes of this Agreement, “willful and material breach” means a material breach of this Agreement that is a consequence of an act undertaken or willful a failure to take an act by the breaching party with the knowledge that the taking of such act or intentional the failure to take such act would cause a material breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event that this Agreement is terminated: (i) by Parent or (I) either the Company or Parent pursuant to Section 9.2(a8.1(c) (Requisite Company Vote Not Obtained) or (b)II) Parent pursuant to Section 8.1(e) (Company Breach) as a result of a material breach by the Company of the covenants or agreements set forth in this Agreement and, if at the following time of such termination, the Requisite Company Vote shall not have occurred:been obtained; and (A) after a bona fide Acquisition Proposal shall have been made publicly to the date Company or any of this Agreement and its Subsidiaries or otherwise become publicly known, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal that has not been withdrawn without qualification prior to, in the case of clause (I), the earlier of (x) five days prior to the Company Meeting, a Takeover Proposal Shareholders Meeting (substituting 35% for the 15% threshold set forth as such meeting may have been adjourned or postponed in the definition of Competing Transaction for purposes accordance with this Agreement) or (y) termination of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company MeetingAgreement; and (B) within twelve (12) 12 months of after such termination termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatea definitive agreement providing for, or shall have consummated or or, in the case of an Acquisition Proposal that is a tender offer, shall have approved or recommended to the Company’s stockholders or otherwise not opposedshareholders, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction an Acquisition Proposal; provided, that, for purposes of this Section 9.5(b)(i)(B8.2(b)(i)), the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%” and, as to clause (i) of such definition, any such Acquisition Proposal shall result in a change in control of at least 50% of the stock or assets of the Company; (ii) by the Company (A) Parent pursuant to Section 9.2(b8.1(g) and, prior to the date of the (Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(aRecommendation Matters); or (iii) by Parent the Company pursuant to Section 9.4(a8.1(h) (Superior Proposal). The Termination Fee shall be paid by the Company no later than: ; then, (x1) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause Section 8.2(b)(i), within two Business Days after consummation of such Acquisition Proposal, (i2) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) Section 8.2(b)(ii), within two (2) Business Days after termination of this Agreement and (3) in the case of clause (iii) above. The Expenses shall be paid Section 8.2(b)(iii), concurrently with or prior to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and the Company shall pay a termination fee of $400,000,000 (the “Company Termination Fee”) (net of any Expense Reimbursement previously paid) to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. In the event that all other damages this Agreement is terminated by either the Company or remedies, at law or in equity Parent pursuant to Section 8.1(c) (including provisional remediesRequisite Company Vote Not Obtained), that might otherwise have been the Company shall pay to Parent, by wire transfer of immediately available funds to Parent an account designated in writing by Parent, all of the reasonable and Merger Sub are waived documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement and the other transactions contemplated by this Agreement, in accordance with an amount not to exceed $25,000,000 (the termination provisions set forth in this Article IX“Expense Reimbursement”), within two Business Days after the date following such termination. Under no circumstances To the extent any portion of the Expense Reimbursement is paid by the Company to Parent, such amount paid shall be deducted from the amount of any Company Termination Fee be payable more than once pursuant to this Article IX. The Company owed or payable. (c) Each party acknowledges that the agreements contained in this Section 9.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub no party would not enter have entered into this Agreement. If ; accordingly, if the Company fails to timely pay both the Parent any amount due pursuant to Section 8.2(b) (any such amount due, a “Termination Fee and Expenses in accordance with this Section 9.5(b) Payment”), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the applicable Termination Fee and/or Expenses, as the case may bePayment, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment thereon at the prime rate as announced published in the The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by Parent) in effect on the date such payment Termination Payment was required to be madepaid from such date through the date of full payment thereof; provided, after delivery that if such suit does not result in a judgment against the Company, Parent shall pay to the Company of reasonable documentation evidencing such its costs and expensesexpenses (including attorneys’ fees) in connection with such suit. (d) Each of the parties acknowledges and agrees that the Company Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Company Termination Fee is due and payable and which do not involve fraud or willful and material breach, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary in this Agreement, (x) in no event shall more than one Company Termination Fee be payable under this Agreement and (y) the parties agree that the payment of the Company Termination Fee shall be the sole and exclusive remedy available to Parent and Merger Sub with respect to this Agreement in the event any such payment becomes due and payable and is paid, and, upon payment of the Company Termination Fee, the Company (and the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives) shall have no further liability to Parent and Merger Sub under this Agreement; provided, that in the event that a Company Termination Fee becomes due and is paid pursuant to this Section 8.2, Parent shall have the right to refund the Company Termination Fee in its entirety within five Business Days after the payment of the Company Termination Fee by the Company, and if Parent does so refund the Company Termination Fee in its entirety to the Company within such five Business Day period, the Company shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of this Agreement and Parent and Merger Sub shall be entitled to all remedies available as contemplated by Section 8.2(a). If Parent fails to exercise its right to refund the Company Termination Fee in accordance with the proviso set forth in the previous sentence, Parent and Merger Sub shall be deemed to have irrevocably waived any and all rights and remedies other than receipt of the Company Termination Fee and the Company and its Representatives shall have no further liability to Parent and Merger Sub under this Agreement. Each of the parties acknowledges and agrees that the Company Termination Fee, if paid to Parent, shall be treated as liquidated damages that are capital in nature to which Section 1234A of the Code applies. (e) Notwithstanding anything to the contrary in this Agreement, none of the Financing Sources shall have any liability to the Company or any Person that is an Affiliate of the Company relating to or arising out of this Agreement or the Debt Financing, whether at law,

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in this Section 10.17.2 and in Section 7.3, Section 8.1, Section 8.7, Section 8.11 and Section 8.14) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of from any liability or damages resulting from for any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees In the event that EDI desires to terminate this Agreement pursuant to Section 7.1(g), then EDI shall first pay Parent a fee, by wire transfer in immediately available funds, of Bowm▇▇ ▇ ▇ee equal to $7,300,000 500,000 (the “"Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case "), payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in funds. In the event that Bowm▇▇ ▇▇▇minates this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b7.1(e), if the following then EDI shall have occurred: (A) promptly, but in no event later than two business days after the date of this Agreement and prior to the Company Meetingsuch termination, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition pay Bowm▇▇ ▇▇▇ Termination fee, payable by wire transfer of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b)same day funds. Notwithstanding anything in this Agreement herein to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, in no event shall EDI be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available required to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall pay the Termination Fee be payable more fee to Bowm▇▇ ▇▇▇e than once pursuant to this Article IXonce. The Company EDI acknowledges that the agreements contained in this Section 9.5(b7.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would Bowm▇▇ ▇▇▇ld not enter into this Agreement. If the Company ; accordingly, if EDI fails to promptly pay both the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 7.2(b), and, in order to obtain such payment, Parent commences Bowm▇▇ ▇▇▇mences a suit that which results in a judgment against the Company EDI for the Termination Fee and/or Expensesset forth in this paragraph (b), as the case may be, the Company EDI shall also pay to Parent its reasonable Bowm▇▇ ▇▇▇ costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made. (c) In the event that Bowm▇▇ ▇▇▇ires to terminate this Agreement pursuant to Section 7.1(d), then Bowm▇▇ ▇▇▇ll first pay EDI the Termination Fee, payable by wire transfer of same day funds. In the event that EDI terminates this Agreement pursuant to Section 7.1(h), then Bowm▇▇ ▇▇▇ll promptly, but in no event later than two business days after delivery the date of such termination, pay EDI the Termination Fee, payable by wire transfer of same day funds. Notwithstanding anything herein to the Company contrary, in no event shall Bowm▇▇ ▇▇ required to pay the Termination Fee to EDI more than once. Bowm▇▇ ▇▇▇nowledges that the agreements contained in this Section 7.2(c) are an integral part of reasonable documentation evidencing the transactions contemplated by this Agreement, and that, without these agreements, EDI would not enter into this Agreement; accordingly, if Bowm▇▇ ▇▇▇ls to promptly pay the amount due pursuant to this Section 7.2(c), and, in order to obtain such payment, EDI commences a suit which results in a judgment against Bowm▇▇ ▇▇▇ the Termination Fee set forth in this paragraph (c), Bowm▇▇ ▇▇▇ll also pay to EDI its costs and expensesexpenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the Termination Fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.16.2 (as to the Parent-Company standstill agreement), Section 6.11, this Section 8.5 and Article IX) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of from any liability or for damages to any other party resulting from any fraud or prior willful or intentional breach of this Agreement. No termination Agreement or from any obligation to pay, if applicable, the fees and reimbursement of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive expenses in accordance with their termsSections 6.11, 8.5(b) or 8.5(c). (b) The If this Agreement is terminated by the Company agrees pursuant to Section 8.3(b), the Company shall pay to Parent a fee, by wire transfer in immediately available funds, of fee equal to $7,300,000 1.7 billion (the “"Termination Fee”") and shall pay all of at the Expenses (as defined time set forth in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by 8.3(b). If this Agreement prior is terminated by Parent pursuant to termination (Section 8.4(c) the Company shall promptly, but in each case payable no event later than two days after such termination, pay to Parent the Termination Fee by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event funds. If (i) this Agreement is terminated: terminated (ix) by Parent or the Company pursuant to Section 9.2(a8.2(b) or (by) by Parent pursuant to Section 8.4(a) or pursuant to Section 8.4(b) (solely with respect to a willful and intentional breach), if (ii) in the following case of clause (x), prior to the vote on adoption of this Agreement at the Company Shareholders Meeting, but after the date of this Agreement, one or more bona fide Acquisition Proposals (other than from Parent or any of its Subsidiaries) involving 50% or more of the outstanding Company Shares or assets of the Company (including its interests in Cingular) representing 50% or more of the fair market value of the consolidated assets of the Company (including its interests in Cingular) or otherwise involving a transaction or series of transactions that could reasonably be expected to result in value to holders of Company Shares comparable to or more favorable than the transactions contemplated by this Agreement (a "Covered Proposal") shall have occurred: been publicly made or any Person shall have publicly announced an intention (Awhether or not conditional) to make a Covered Proposal and, in the case of clause (y), a Covered Proposal shall have been made after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)iii) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), within 12 months after the date of such termination or a termination, any Person (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company other than Parent or any of its Subsidiaries shall have affiliates or the Company and any of its Subsidiaries) (an "Acquiring Person") has acquired, or has entered into an Alternative Acquisition Agreement agreement to consummateacquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding Company Shares (or shareholders of the Company immediately prior to such transaction cease to hold at least 50% of the Company Shares (or any successor shares) after such transaction) or at least 50% of the fair market value of the Company's consolidated assets (including its interests in Cingular) or the Company or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of the Company's consolidated assets or the Company or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that in, one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer -64- or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall have consummated not be taken into account in determining if the completed transaction is substantially similar), then the Company shall promptly, but in no event later than two days after the completion of such transaction or shall have approved or recommended the time such agreement is entered into as the case may be, pay Parent the Termination Fee (less any amounts reimbursed to Parent pursuant to the Company’s stockholders next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b8.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a8.4(a). The Termination Fee shall be paid by , then the Company shall promptly, but in no event later than: (x) than two (2) Business Days days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by request from Parent, shall be the sole reimburse Parent for all fees and exclusive remedy expenses (up to a maximum of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived $120 million) incurred by Parent and Merger Sub upon the acceptance its Subsidiaries (plus 60% of such payment; provided, however, that prior to payment of such Termination Fee to Parent all fees and acceptance expenses incurred by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid Cingular and its Subsidiaries) in connection with the termination of this Agreement in accordance with and the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee transactions contemplated hereby, such reimbursement amount to be payable more than once pursuant to this Article IXby wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to pay both promptly the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this Section 8.5(b), the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required should have been made. (c) If (i) this Agreement is terminated by Parent or the Company pursuant to be madeSection 8.2(c) or by the Company pursuant to Section 8.3(a), (ii) prior to Parent Stockholders Meeting, but after delivery the date of this Agreement, a Covered Proposal (for this purpose substituting therein Parent for each reference to the Company and Parent Common Stock for each reference to Company Shares and disregarding the second proviso in the definition of reasonable documentation evidencing "Acquisition Proposal" and substituting "Section 6.1(b)(viii)" for "Section 6.1(a)(ix) or (xiii)" in the definition of "Acquisition Proposal") other than any such Acquisition Proposal from the Company or any of its Subsidiaries (a "Parent Covered Proposal") shall have been publicly made or any Person shall have publicly announced an intention (whether or not conditional) to make a Parent Covered Proposal and (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its Subsidiaries or the Company and any of its Subsidiaries) (a "Parent Acquiring Person") has acquired, or has entered into an agreement to acquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding shares of Parent Common Stock (or stockholders of Parent immediately prior to such transactions cease to hold at least 50% of the shares of Parent Common Stock (or successor shares) after such transaction) or at least 50% of the fair market value of Parent's consolidated assets (including its interest in Cingular) or Parent or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of Parent's consolidated assets or Parent or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that, in one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall not be taken into account in determining if the completed transaction is substantially similar), then Parent shall promptly, but in no event later than two days after the date of consummation of such acquisition or at the time such agreement is entered into, as the case may be, pay to the Company the Termination Fee (less any amounts reimbursed to the Company pursuant to the next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c) or by the Company pursuant to Section 8.3(a), then Parent shall promptly, but in no event later than two days after a request from the Company, reimburse the Company for all fees and expenses (up to a maximum of $120 million) incurred by the Company and its Subsidiaries (plus 40% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such reimbursement amount to be payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to pay promptly the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee or reimbursement set forth in this Section 8.5(c), Parent shall pay to the Company its costs and expensesexpenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment should have been made.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.16.6, this Section 8.5 and Article IX each of which shall survive the termination of this Agreement) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that all of the following three events have occurred: (i) this Agreement is validly terminated by either Parent or the Company agrees pursuant to Section 8.2(a) or Section 8.2(b); (ii) after the date hereof and prior to the Special Meeting, an Alternative Proposal with respect to the Company shall have been publicly made (and not withdrawn); and (iii) within six months following termination of this Agreement, a transaction that if proposed prior to termination would have constituted an Alternative Proposal, is consummated by the Company or the Company enters into a definitive agreement with another Person (other than Parent) providing for the consummation of an Alternative Proposal by the Company (and such Alternative Proposal is ultimately consummated), the Company shall, no later than two business days after the consummation of the Alternative Proposal, pay to Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 15,700,000 in cash (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date to an account designated by Parent (it being understood that the Termination Fee or the Expenses, as applicable, is due as provided belowfor all purposes of this clause “(b), ,” all references in the definition of Alternative Proposal to 20% shall be deemed to be references to 50% instead). (c) In the event that this Agreement is terminated: (i) validly terminated by Parent or the Company pursuant to Section 9.2(a) or (b8.3(a), if then the following shall have occurred: (A) after Company shall, contemporaneously with such termination, pay Parent the date Termination Fee by wire transfer of same day funds to an account designated by Parent. In the event that this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) is validly terminated by Parent pursuant to Section 9.4(a8.4(a). The Termination Fee shall be paid by , then the Company shall, no later than: (x) than two (2) Business Days business days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to such termination, pay Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement by wire transfer of same day funds to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted an account designated by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity . (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. d) The Company acknowledges that the agreements contained in this Section 9.5(bSections 8.5(b) and (c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee amount due pursuant to Section 8.5(b) and Expenses in accordance with this Section 9.5(b) 8.5(c), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may beFee, the Company shall pay to Parent its Parent, in addition to the Termination Fee, the reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal of Citibank, N.A. in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesaffiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful or intentional material breach of this Agreement. No Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior Agreement, a bona fide Acquisition Proposal shall have been made to the Company MeetingCompany, a Takeover any of its Subsidiaries or any of its stockholders, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly disclosed, announced intention shall not have been publicly withdrawn prior to either (1x) with respect to any termination pursuant to Section 9.2(a8.2(b), the date of such termination or the Stockholders Meeting at which the vote on the Merger is held, (2y) with respect to any termination pursuant to Section 9.2(b8.2(a), the date of the Company Meeting; and Termination Date and (z) with respect to any termination pursuant to clause (B) below, such breach by the Company) and thereafter this Agreement is terminated (A) by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b) or (B) by Parent pursuant to Section 8.4(b) as a result of a willful and material breach by the Company of any of its agreements set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.14(b), 6.15 and/or 6.16 of this Agreement; (ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) or is terminable by Parent pursuant to Section 8.4(a) when otherwise terminated; or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a); then the Company shall promptly (but in no event later than five (5) days after the date of such termination) pay Parent the Termination Fee (provided, however, that the Termination Fee to be paid pursuant to clause (iii) of this Section 8.5(b) shall be paid as set forth in Section 6.2(f) payable by wire transfer of same day funds; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this paragraph (b) unless and until within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into consummated an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction Proposal (substituting 35% “25%” for the “15% threshold set forth %” in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(Bthereof)); (ii) . Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge and agree that in the event that the Termination Fee becomes payable and is paid by the Company (A) pursuant to this Section 9.2(b) and8.5(b), prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the CompanyParent’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the Sub’s sole and exclusive remedy against the Company and any of Parent its Subsidiaries and Merger Sub upon the termination Company’s and any of this Agreement, its Subsidiaries’ Representatives with respect to any and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment breaches of any Termination Fee paid in connection with the termination representation, warranty, covenant or agreement of this Agreement in accordance with the termination provisions set forth in or otherwise relating to or arising out of this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of Agreement or the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVI, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party Party hereto (or of any of its directors, directors or officers, employees, agents, legal and financial advisors ) shall have any liability or further obligation to any other representatives); provided, howeverParty to this Agreement, except as otherwise provided herein, no such termination in Section 4.5 (regarding confidentiality) and this Section 6.5 and except that nothing herein shall relieve any party hereto of Party from liability for any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent In the event of: a fee, by wire transfer in immediately available funds, termination of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior pursuant to Sections 6.1(iv) or (v), or any termination of this Agreement by the Parent pursuant to Section 6.2, then the Company shall , within five (in each case payable 5) business days thereafter, pay the Parent by wire transfer of same day immediately available funds on to an account specified by the date that Parent up to $1.5 million for all documented out of pocket reasonable fees and expenses incurred by the Termination Fee or Parent (including the reasonable fees and expenses of counsel, accountants, consultants and advisors) in connection with this Agreement and the transactions contemplated hereby (subject to such $1.5 million limit, "Parent Documented Expenses, as applicable, is due as provided below"), in . (c) In the event of a termination of this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a6.1(v) or , the Company shall, within five (b5) business days thereafter, pay the Parent by wire transfer of immediately available funds to an account specified by the Parent a fee of $2.2 million (the "Termination Fee"), if less any Parent Documented Expenses paid to Parent. (d) prior to entering into any such definitive agreement or any such Business Combination Transaction being effected, shall, within five (5) business days thereafter, pay the Parent by wire transfer of immediately available funds to an account specified by the Parent the Termination Fee, less any Parent Documented Expenses paid to Parent. (e) As used in this Section 6.5, the term "Business Combination Transaction" shall mean any of the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination involving the Company or any subsidiary of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatethe Company, or shall have consummated or shall have approved or recommended that is material to the Company’s stockholders business, results of operation, prospects or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date financial condition of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.:

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from (A) any fraud or willful or intentional breach of this Agreement. No , or (B) the failure of Parent to obtain the requisite financing to consummate the Merger, and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that (i) a bona fide Acquisition Proposal shall have been made to the Company agrees or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (A) prior to, with respect to any termination pursuant to Section 8.2(a), the date of termination, and (B) at least five (5) Business Days prior to, with respect to termination pursuant to Section 8.2(b), the date of the Shareholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), or (ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a) or 8.4(c) or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Shareholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) or 8.4(c) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 5,000,000 (the “Termination Fee”) pursuant to this Section 8.5(b) and shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the Expenses (as defined documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent or Merger Sub in Section 10.14) of Parent actually incurred from third-parties relating to connection with this Agreement and the transactions contemplated by this Agreement prior up to termination (a maximum amount of $1,000,000, in each case payable by wire transfer of same day funds on the date that the funds. The Termination Fee or to be paid pursuant to clause (iii) of the Expenses, previous sentence shall be paid as applicable, is due as provided belowset forth in Section 8.3(a), in the event this Agreement is terminated: . No Termination Fee shall be payable to Parent pursuant to clause (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if ii) of the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes first sentence of this Section 9.5(b)(i)(A)8.5(b) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) unless and until within twelve (12) months of such the termination of this Agreement the Company or any of its Subsidiaries shall have entered into an Alternative Alternate Acquisition Agreement to consummatewith respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for an Acquisition Proposal. For all purposes of this Section 9.5(b)(i)(B)); Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (ii12) by months of such termination, the Company (A) pursuant to Section 9.2(b) and, prior to the date or any of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) its Subsidiaries shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of entered into an Alternative Acquisition Agreement (other than a confidentiality agreement)with respect to, approval or recommendation shall have consummated or shall have approved, adopted or recommended to the Company’s stockholders of a Takeover Proposalor otherwise not opposed, failure to oppose a Takeover an Acquisition Proposal made by or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment behalf of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy Person or any of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXits Affiliates. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expensesfee, as the case may becharges or expenses to which reference is made in this paragraph (b), the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank, N.A. in effect on the date such payment was required to be made, after delivery . Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company of reasonable documentation evidencing such costs and expensesaccepted by Parent pursuant to this Section 8.5(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IX, written notice thereof shall be given to the other parties, specifying the provision or provisions hereof pursuant to which such termination shall have been made, and this Agreement (other than as set forth in this Section 10.19.5, Section 7.6 (Public Announcements), Section 7.9 (Fees and Expenses), Section 10.2 (Entire Agreement; Assignment), Section 10.3 (Notices), Section 10.4 (Governing Law; Jurisdiction), Section 10.5 (No Third Party Beneficiaries) and Section 10.8 (Confidentiality)) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Subsidiaries or other representativestheir respective Representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that (i) this Agreement is terminated by Parent pursuant to Section 9.4(a) or Section 9.4(b), (ii) this Agreement is terminated by the Company agrees pursuant to Section 9.3(b), or (iii) if (A) an Acquisition Proposal shall have been made, proposed or communicated (and not withdrawn) after the date hereof and prior to the Company Shareholders Meeting (or prior to the termination of this Agreement if there has been no Company Shareholders Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 9.2(a) or Section 9.2(b), and (C) at any time prior to the date that is twelve (12) months after the date of such termination, (x) the Company enters into any definitive agreement providing for an Acquisition Proposal (provided that, for purposes of this Section 9.5(b), all references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”), or (y) an Acquisition Proposal is consummated (whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)), then the Company shall pay or cause to be paid to Parent or its designee a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 US$1,100,000 (the “Company Termination Fee”), (1) within two (2) Business Days of such termination in the case of a termination referred to in clause (i) or (ii), or (2) within two (2) Business Days of such events described in clauses (x) and (y) above shall pay all have occurred in the case of the Expenses clause (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (iii), in each case payable case, by wire transfer of same day funds on to one or more accounts designated in writing by Parent. In the date event that Parent or its designee shall receive full payment of the Company Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a9.5(b), the date receipt of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company no later than: (x) two (2) Business Days after the first to occur Parent, Merger Sub or any other Person arising out of or in connection with this Agreement, any of the execution transactions contemplated hereby (and the abandonment or termination hereof) or any matter forming the basis for such termination, and none of an Alternative Acquisition Agreement Parent, Merger Sub or any other Person shall be entitled to bring or maintain any Proceeding against any Company Related Party arising out of or in connection with this Agreement, any of the transactions contemplated hereby (and the abandonment or termination hereof) or any matters forming the basis for such termination. For the avoidance of doubt, other than a confidentiality agreement)an Order of specific performance pursuant to Section 10.7, approval or recommendation the right of Parent and its designees to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to receive payment from the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Company Termination Fee payment obligation described referred to in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, ) shall be the sole and exclusive remedy of the Parent and Merger Sub upon Related Parties against the termination Company Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby (and that all other damages the abandonment or remediestermination hereof) or any matter forming the basis for such termination, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereofamounts, nothing herein none of the Company Related Parties shall prohibit Parent from seeking specific performance have any further liability or obligation arising out of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid or in connection with this Agreement, any of the transactions contemplated hereby (and the abandonment or termination of this Agreement in accordance with hereof) or any matter forming the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXbasis for such termination. The Company acknowledges that the agreements contained in provisions of this Section 9.5(b) are intended to be for the benefit of, and shall be enforceable by, each Company Related Party. (c) In the event that the Company terminates this Agreement pursuant to Section 9.3(a) or Section 9.3(c), then, Parent shall pay or cause to be paid to the Company a termination fee in an integral part amount equal to US$2,200,000 (the “Parent Termination Fee”), by wire transfer of same day funds to one or more accounts designated in writing by the Company. In the event that the Company or its designee shall receive the Parent Termination Fee pursuant to this Section 9.5(c), the receipt of such Parent Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company or any other Person arising out of or in connection with this Agreement, any of the transactions contemplated by hereby (and the abandonment or termination hereof) or any matter forming the basis for such termination, and neither the Company nor any other Person shall be entitled to bring or maintain any Proceeding against any Parent Related Party arising out of or in connection with this Agreement, any of the transactions contemplated hereby (and thatthe abandonment or termination hereof) or any matters forming the basis for such termination. For the avoidance of doubt, without these agreementsother than an Order of specific performance pursuant to Section 10.7, Parent and Merger Sub would not enter into this Agreement. If the right of the Company fails and its designees to pay both receive payment from Parent of the Termination Fee referred to in this Section 9.5(c) shall be the sole and Expenses exclusive remedy of the Company Related Parties against the Parent Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, any of the transactions contemplated hereby (and the abandonment or termination hereof) or any matter forming the basis for such termination, and upon payment of such amounts, none of the Parent Related Parties shall have any further liability or obligation arising out of or in connection this Agreement, any of the transactions contemplated hereby (and the abandonment or termination hereof) or any matter forming the basis for such termination. The provisions of this Section 9.5(c) are intended to be for the benefit of, and shall be enforceable by, each Parent Related Party. (d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent Termination Fee, when due and in accordance with the requirements of this Section 9.5(b) andAgreement, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expensesor Parent, as the case may be, shall reimburse the Company shall pay to Parent its reasonable other party for all costs and expenses actually incurred or accrued by the other party (including reasonable attorneys’ including, without limitation, fees and expensesexpenses of counsel) incurred in connection with such suitthe collection under and enforcement of this Section 9.5, together with interest on the amount of the such unpaid Company Termination Fee and/or Expensesor Parent Termination Fee, from as the case may be, commencing on the date that such payment overdue amount was originally required to be made until paid and ending on the date of payment that such overdue amount is actually paid in full, at a rate per annum equal to the prime lending rate as announced published in the The Wall Street Journal in effect on the date such payment was required to be made. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder. (e) Each party acknowledges that (i) the agreements contained in this Section 9.5 are an integral part of the Transactions, after delivery (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination Fee or Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 9.5(b) or Section 9.5(c) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without the agreements contained in this Section 9.5, the parties would not have entered into this Agreement. (f) Notwithstanding anything in this Agreement to the contrary, (i) under no circumstances will the Company be entitled to monetary damages in connection with this Agreement in excess of reasonable documentation evidencing such costs the aggregate amount of (A) Parent Termination Fee, and expenses(B) any amount payable by Parent pursuant to Section 9.5(d), and (ii) under no circumstances will Parent be entitled to monetary damages in excess of the aggregate amount of (A) the Termination Fee and (B) any amount payable by the Company pursuant to Section 9.5(d).

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, herein no such termination shall relieve any party hereto of any liability to pay the Termination Fee, the Parent Expenses or damages resulting from any fraud or willful or intentional breach the Parent Fee pursuant to this Section 8.5, and (ii) this Section 8.5 and Article IX shall survive the termination of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $7,300,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in In the event this Agreement is terminatedthat: (i) by Parent or (x) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 9.2(a8.2(a) or (bthe section relating to the Termination Date), if or Section 8.2(b) (the following section relating to failure to receive stockholder approval), (y) any Person shall have occurred: (A) made or publicly announced a bona fide Acquisition Proposal after the date of this Agreement and but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn without qualification in a manner that would reasonably be expected to adversely affect the receipt of the Company MeetingRequisite Vote in any material respect at least ten (10) calendar days prior to, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a8.2(a), the date of such termination or (2) or, with respect to any a termination pursuant to Section 9.2(b8.2(b), no later than five (5) business days prior to the date of the Company Meeting; and Stockholders Meeting and (Bz) within twelve eighteen (1218) months of such termination (A) the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated an Acquisition Proposal (whether or shall have approved or recommended not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (y) of this Section 8.5(b)(i)) (provided that for purposes of this clause (z) the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth references to “20%” in the definition of Competing Transaction “Acquisition Proposal” shall be deemed to be references to “50%”) or (B) the Company and its Subsidiaries, taken as a whole, shall have consummated any transaction, or any series of transactions, providing for purposes the sale of this Section 9.5(b)(i)(B))assets (including equity securities of any Subsidiaries of the Company) for aggregate consideration (including the assumption of any Indebtedness by any purchaser of such assets) of greater than $1.0 billion; (ii) this Agreement is terminated by the Company (A) Parent pursuant to clause (a) of Section 9.2(b) and, prior 8.4 (the section relating to the date a Change of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(aRecommendation); or (iii) this Agreement is terminated by Parent the Company pursuant to Section 9.4(a). The Termination Fee shall be paid by 8.3(a) (the Company no later than: (x) two (2) Business Days after the first section relating to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreementAgreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may be, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.;

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.1) shall become void and of no effect with no liability (other than as set forth in Section 8.5(b) or obligation in the proviso at the end of this sentence) on the part of any party hereto (to this Agreement or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of to this Agreement from any liability for damages or damages other relief resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that (i) an Acquisition Proposal shall have been made to the Company agrees and made known to shareholders of the Company generally or have been made directly to shareholders of the Company generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and such Acquisition Proposal or announced intention shall not have been withdrawn prior to the Shareholders Meeting and thereafter, there is a failure to obtain the Company Requisite Vote at the Shareholders Meeting, and this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(ii) and within 12 months after such termination the Company shall have entered into an agreement (a "Subsequent Agreement") to consummate a transaction that would constitute an Acquisition Proposal if it were the subject of a proposal or (ii) this Agreement is terminated (x) by the Company pursuant to Section 8.3(a) or (y) by Parent prior to the Shareholders Meeting pursuant to Section 8.4(a) or at any time pursuant to Section 8.4(b) (solely with respect to a breach of Section 6.2), then the Company shall promptly, but in no event later than two days after the date of such termination (except as otherwise provided in Section 8.3(a)), or, in the case of termination pursuant to Section 8.5(b)(i), two days after a Subsequent Agreement is entered into, pay Parent a fee, by wire transfer in immediately available funds, of fee equal to $7,300,000 300 million (the “"Termination Fee”) and "), which amount shall pay all be exclusive of the Expenses (as defined in any expenses to be paid pursuant to Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case 6.11, payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses, as applicable, is due as provided below), in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefor and delivery to the Company of reasonable documentation therefor following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee, if such payment is actually paid and is accepted by Parent, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee to Parent and acceptance by Parent thereof, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject the payment of any Termination Fee paid in connection with the termination of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXfunds. The Company acknowledges that the agreements contained in this Section 9.5(b8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If ; accordingly, if the Company fails to pay both promptly the Termination Fee and Expenses in accordance with amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expenses, as the case may befee set forth in this paragraph (b), the Company shall pay to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment fee at the prime rate as announced in the The Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, no party to this Agreement shall have any liability or further obligation to any other party hereunder except (other than i) as set forth in this Section 10.18.02 and Section 9.01 and (ii) shall become void and of no effect with no that termination will not relieve a breaching party from liability or obligation on the part for any willful breach of any party hereto (covenant, agreement, representation or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination warranty of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsgiving rise to such termination. (b) The In recognition of the efforts, expenses and other opportunities foregone by the Purchasers while structuring and pursuing the Merger, the parties hereto agree that the Company agrees shall pay to pay Parent the Purchasers, without duplication, a fee, by wire transfer in immediately available funds, termination fee of $7,300,000 1,750,000 (the “Termination Fee”) and shall pay all of the Expenses (as defined in Section 10.14) of Parent actually incurred from third-parties relating to the transactions contemplated by this Agreement prior to termination (in each case payable by wire transfer of same day funds on the date that the Termination Fee or the Expenses), as applicableset forth below, is due as provided below), in the event this Agreement is terminatedif: (i) this Agreement is terminated by Parent or either of the Company Purchasers pursuant to Section 9.2(a8.01(g) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, enters into a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, prior to either (1) definitive agreement with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the date of the Company Meeting; and (B) an Acquisition Transaction within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of Competing Transaction for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) aboveAgreement. The Expenses termination fee payable under this Section 8.02(b)(i) shall be paid paid, without duplication, by wire transfer of immediately available funds to Parent an account designated by the Purchasers within two (2) Business Days after demand therefor of the date the Company enters into a definitive agreement with respect to an Acquisition Transaction; or (ii) this Agreement is terminated by the Company pursuant to Section 8.01(i). Amounts that become payable pursuant to this Section 8.02(b)(ii) shall be paid, without duplication, by wire transfer of immediately available funds to an account designated by the Purchasers within five (5) Business Days of the date this Agreement is terminated. (c) In further recognition of the efforts, expenses and delivery other opportunities foregone by the parties while structuring and pursuing the Merger, the parties hereto agree that: (i) if this Agreement is terminated by either of the Purchasers pursuant to Section 8.01(e) or by either of the Purchasers or the Company pursuant to Section 8.01(c), then the Company shall pay to the Company Purchasers, without duplication, a termination reimbursement amount equal to the aggregate amount of reasonable documentation therefor following all reasonable, documented, out-of-pocket costs and expenses incurred by the occurrence Purchaser and the Purchaser Parent solely and directly in connection with the execution, delivery and performance of this Agreement by the Purchaser and the Purchaser Parent (the “Purchaser Termination Reimbursement Amount”); (ii) if this Agreement is terminated (A) by either of the termination event giving rise Purchasers pursuant to Section 8.01(h), (with the parties expressly acknowledging that the Company is presently licensed in all jurisdictions identified in Schedule II) unless the Purchasers can establish that such approvals were denied or applications were withdrawn, as the case may be, solely because of information pertaining to, or a fact or circumstance relating to, the Company or any of its respective officers as of the date hereof, shareholders as of the date hereof, directors as of the date hereof or any of their affiliated Persons or affiliated individuals, or (B) by the Company pursuant to Section 8.01(e), then the Purchasers shall pay to the Company, without duplication, the aggregate amount of all reasonable, documented, out-of-pocket costs and expenses incurred by the Company solely and directly in connection with the execution, delivery and performance of this Agreement by the Company (the “Company Termination Fee payment obligation described Reimbursement Amount”); and (iii) if this Agreement is terminated by either of the Purchasers or the Company pursuant to Section 8.01(f) and, as of the dates set forth in Section 8.01(f), unless Purchasers can establish that the licensing approvals shall not have been obtained as provided in Section 8.01(h) for reasons solely attributable to information pertaining to, or a fact or circumstance relating to, the Company, or any of its respective officers as of the date hereof, shareholders as of the date hereof, directors as of the date hereof or any of their affiliated Persons or affiliated individuals, then the Purchasers shall pay to the Company, without duplication, the Company Termination Reimbursement Amount. Any amount that becomes payable pursuant to this Section 9.5(b)8.02(c) shall be paid, without duplication, by wire transfer of immediately available funds, to an account designated by the party(ies) to whom such amount is due, within two (2) Business Days of the date that the documentation of costs and expenses contemplated hereby is delivered to the party required to make payment hereby. (d) The Company and the Purchasers agree that the agreement contained in paragraph (b) of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, and that without such agreement the Purchasers would not have entered into this Agreement. Notwithstanding anything contained in this Agreement to the contrary, Parent and Merger Sub agree in the event that this Agreement is terminated pursuant to Section 8.02(b), the payment of such Termination Feethe amounts contemplated in Section 8.02(b) is intended by the parties to be, if such payment is actually paid and is accepted by Parentshall constitute, liquidated damages and shall be the sole and exclusive remedy and shall be in lieu of Parent any and Merger Sub upon all claims that the termination of Purchasers and their respective officers, directors, partners and stockholders have, or might have, against the Company and its officers, directors and shareholders for any claims arising from, or relating in any way to, this AgreementAgreement or the Merger, and that all the Purchasers and their respective officers, directors, partners and shareholders shall not have any other damages rights or remediesclaims against the Company and its officers, at law or in equity directors and shareholders. If the Company fails to pay the Purchasers the amounts due under paragraph (b) above within the time periods specified therein, the Company shall pay the costs and expenses (including provisional remedies)reasonable legal fees and expenses) incurred by the Purchasers in connection with any action in which the Purchasers prevail, that might otherwise have been available including the filing of any lawsuit, taken to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to collect payment of such Termination Fee to Parent and acceptance by Parent thereofamounts, nothing herein shall prohibit Parent from seeking specific performance of this Agreement; provided, however, Parent shall not unreasonably reject together with interest on the payment amount of any Termination Fee such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid in connection with until the termination date of this Agreement in accordance with the termination provisions set forth in this Article IX. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. actual payment. (e) The Company acknowledges and the Purchasers agree that the agreements contained in paragraph (c) of this Section 9.5(b) 8.02 are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, Parent and Merger Sub such agreement the parties would not enter have entered into this AgreementAgreement and that such amounts do not constitute a penalty or liquidated damages in the event that this Agreement is terminated pursuant to Section 8.02(c). If the party(ies) owing the Purchaser Termination Reimbursement Amount or the Company fails Termination Reimbursement Amount, as applicable, fail(s) to pay both the Termination Fee and Expenses in accordance with this Section 9.5(bother party(ies) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for amounts due under paragraph (c) above within the Termination Fee and/or Expenses, as the case may betime periods specified therein, the party(ies) owing the applicable Purchaser Termination Reimbursement Amount or Company Termination Reimbursement Amount shall pay to Parent its reasonable the costs and expenses (including reasonable attorneys’ legal fees and expenses) incurred by the other party(ies) in connection with any action in which the other party(ies) prevail(s), including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of any such unpaid amounts at the Termination Fee and/or Expensesprime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made paid until the date of payment at the prime rate as announced in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesactual payment.