Common use of Alternative Transaction Fee Clause in Contracts

Alternative Transaction Fee. The Company agrees that, from the date hereof through the Closing Date or the termination of this Agreement, whichever occurs first, it will not initiate, solicit, encourage, discuss, negotiate or accept any offers from any third party or indicate any interest to any third party with respect to (i) the sale of capital stock of the Company, (ii) the sale of all or substantially all of the assets of the Company, (iii) any merger or consolidation of the Company with any other person or (iv) any material financing transaction (each, an "Alternative Transaction"); provided, however, that the Company may, if the Board of Directors of the Company determines in good faith, based upon the advice of its outside legal counsel, that the failure to do so would be reasonably likely to result in a breach of its fiduciary duties under applicable law, participate in discussions regarding any such Alternative Transaction and furnish information with respect to the Company and its Subsidiaries pursuant to a customary confidentiality agreement. The Company agrees to notify the Purchasers promptly if any third party contacts the Company regarding any Alternative Transaction and to provide to the Purchasers such information with respect thereto as the Purchasers request. In the event that (i) (x) the Company terminates this Agreement pursuant to Section 9.1 for any reason other than pursuant to Section 9.1(c), including the failure to obtain the Stockholder Approval, or (y) the Purchasers terminate this Agreement pursuant to Section 9.1 for any reason other than pursuant to Section 9.1(d), including the failure to obtain the Stockholder Approval, and (ii) the Company enters into any binding or non-binding term sheet, letter of intent or agreement relating to an Alternative Transaction within twelve (12) months after such termination and consummates an Alternative Transaction within twenty-four (24) months after such termination, then the Company shall pay an alternative transaction fee equal to $1,000,000 (the "Alternative Transaction Fee") within two Business Days after the consummation of such Alternative Transaction (the "Payment Date") to the Designated Purchasers, which are the Purchasers who executed the term sheet with the Company, dated January 14, 2003, relating to the transactions contemplated by this Agreement. Such Alternative Transaction Fee shall be paid to the Designated Purchasers pro rata with their respective commitments set forth in such term sheet. The Company also shall be obligated to reimburse the Purchasers for their out-of-pocket fees and expenses as provided in Section 10.11. From and after the Payment Date, to the extent that the Alternative Transaction Fee has not been paid, the Company shall continue to be obligated to immediately pay the Alternative Transaction Fee and such payment will be made together with interest at 10% compounded daily beginning on the Payment Date and ending on the date of payment. Payments must be made by wire transfer of cash or other immediately available funds.

Alternative Transaction Fee. The Company agrees that, from the date hereof through the Closing Date or the termination of this Agreement, whichever occurs first, it will not initiate, solicit, encourage, discuss, negotiate or accept any offers from any third party or indicate any interest to any third party with respect to (i) the sale of capital stock of the Company, (ii) the sale of all or substantially all of the assets of the Company, (iii) any merger or consolidation of the Company with any other person or (iv) any material financing transaction (each, an "“Alternative Transaction"”); provided, however, that the Company may, if the Board of Directors of the Company determines in good faith, based upon the advice of its outside legal counsel, that the failure to do so would be reasonably likely to result in a breach of its fiduciary duties under applicable law, participate in discussions regarding any such Alternative Transaction and furnish information with respect to the Company and its Subsidiaries pursuant to a customary confidentiality agreement. The Company agrees to notify the Purchasers promptly if any third party contacts the Company regarding any Alternative Transaction and to provide to the Purchasers such information with respect thereto as the Purchasers request. In the event that (i) (x) the Company terminates this Agreement pursuant to Section 9.1 for any reason other than pursuant to Section 9.1(c), including the failure to obtain the Stockholder Approval, or (y) the Purchasers terminate this Agreement pursuant to Section 9.1 for any reason other than pursuant to Section 9.1(d), including the failure to obtain the Stockholder Approval, and (ii) the Company enters into any binding or non-binding term sheet, letter of intent or agreement relating to an Alternative Transaction within twelve (12) months after such termination and consummates an Alternative Transaction within twenty-four (24) months after such termination, then the Company shall pay an alternative transaction fee equal to $1,000,000 (the "“Alternative Transaction Fee"”) within two Business Days after the consummation of such Alternative Transaction (the "“Payment Date"”) to the Designated Purchasers, which are the Purchasers who executed the term sheet with the Company, dated January 14, 2003, relating to the transactions contemplated by this Agreement. Such Alternative Transaction Fee shall be paid to the Designated Purchasers pro rata with their respective commitments set forth in such term sheet. The Company also shall be obligated to reimburse the Purchasers for their out-of-pocket fees and expenses as provided in Section 10.11. From and after the Payment Date, to the extent that the Alternative Transaction Fee has not been paid, the Company shall continue to be obligated to immediately pay the Alternative Transaction Fee and such payment will be made together with interest at 10% compounded daily beginning on the Payment Date and ending on the date of payment. Payments must be made by wire transfer of cash or other immediately available funds.

Alternative Transaction Fee. The Company agrees that, from the date hereof through the Second Tranche Closing Date or the termination of this Agreement, whichever occurs first, it will not initiate, solicit, encourage, discuss, negotiate or accept any offers from any third party or indicate any interest to any third party with respect to (i) the sale of capital stock of the Company, (ii) the sale of all or substantially all of the assets of the Company, (iii) any merger or consolidation of the Company with any other person or (iv) any material financing transaction (each, an "“Alternative Transaction"”); provided, however, that the Company may, if the Board of Directors of the Company determines in good faith, based upon the advice of its outside legal counsel, that the failure to do so would be reasonably likely to result in a breach of its fiduciary duties under applicable law, participate in discussions regarding any such Alternative Transaction and furnish information with respect to the Company and its Subsidiaries pursuant to a customary confidentiality agreement. The Company agrees to notify the Purchasers promptly if any third party contacts the Company regarding any Alternative Transaction and to provide to the Purchasers such information with respect thereto as the Purchasers request. In the event that (i) (x) the Company terminates this Agreement pursuant to Section 9.1 for any reason other than pursuant to Section 9.1(c)reason, including the failure to obtain the Stockholder Approval, or (y) any of the conditions to the obligations of the Purchasers terminate this Agreement pursuant set forth in Article V shall not be fulfilled prior to Section 9.1 for any reason other than pursuant to Section 9.1(d), including the failure to obtain the Stockholder ApprovalOutside Date, and (ii) the Company enters into any binding or non-binding term sheet, letter of intent or agreement relating to an Alternative Transaction within twelve on or prior to July 19, 2008, then, at the election of RockPort, either (12A) months after such termination and consummates an Alternative Transaction within twenty-four (24) months after such termination, then the Company shall pay an alternative transaction fee equal to, at the Company’s option, either $2,000,000 if paid in shares of Common Stock (based on the lower of the closing price of the Common Stock on the trading date preceding the Payment Date or the volume weighted average price of the Common Stock for the ten (10) Trading Days prior to the Payment Date) or $1,000,000 1,500,000 if paid in cash (in either case, the "“Alternative Transaction Fee"”) within two Business Days after on the consummation closing date of the Alternative Transaction (the “Payment Date”) or (B) the Company shall use its best efforts to provide the Purchasers with the opportunity to invest up to fifty percent (50%) of the aggregate amount being invested and on the same terms and conditions as the other investors or participants in such Alternative Transaction (any securities of the "Company issued in connection therewith, the “Alternative Transaction Securities”); provided that if the Purchasers elect to invest in the Alternative Transaction in accordance with clause (B) of this sentence, but do not have the opportunity to so invest, the Purchasers shall be paid the Alternative Transaction Fee on the Payment Date") to the Designated Purchasers, which are the Purchasers who executed the term sheet with the Company, dated January 14, 2003, relating to the transactions contemplated by this Agreement. Such Alternative Transaction Fee shall be paid to the Designated Purchasers pro rata with based on their respective commitments set forth in such term sheeton Exhibit A hereto. The Company also shall be obligated to reimburse the Purchasers for their out-of-pocket fees and expenses as provided in Section 10.1111.12. From and after the Payment Date, to the extent that the Alternative Transaction Fee has not been paid, the Company shall continue to be obligated to immediately pay the Alternative Transaction Fee and such payment will be made together with interest at 10% annual rate compounded daily beginning on the Payment Date and ending on the date of payment. Payments must be made by wire transfer of cash or other immediately available funds.

Alternative Transaction Fee. The Company agrees thatshall pay, from or cause to be paid, to each Lender, by cashier’s or certified check or by wire transfer of immediately available funds to a bank account designated by such Lender in writing, the date hereof through following amounts, if applicable, as a fee: (a) if the Closing Date or Company elects to convert less than all of the termination outstanding TLC in connection with, and upon the occurrence of, a Qualifying IPO during the Option Period (including an IPO as to which the Majority Lenders have waived any unsatisfied conditions set forth herein to the exercise of this Agreementthe Conversion Option), whichever occurs firstwithin one Business Day after completion of the Conversion, an amount equal to such Lender’s Ratable Percentage of 2% of the outstanding unpaid principal amount of TLC not converted into Common Stock in connection with such Qualifying IPO (it will not initiate, solicit, encourage, discuss, negotiate or accept any offers from any third party or indicate any interest to any third party being understood and agreed that if the Company exercises the Conversion Option with respect to (i) the sale entire outstanding unpaid principal amount of capital stock of the CompanyTLC, (ii) the sale of all or substantially all of the assets of the Company, (iii) no amount shall be paid to any merger or consolidation of the Company with any other person or (iv) any material financing transaction (each, an "Alternative Transaction"Lender pursuant to this Section 4(a)); provided, however, that that, notwithstanding the foregoing, in connection with a Qualifying IPO, any such Lender may cause (a “Mandatory Conversion”) the Company may, if the Board of Directors to convert all or any portion of the Company determines outstanding unpaid principal amount of TLC not elected to be converted into Common Stock by the Company, in good faithlieu of receipt of such cash payment, based upon the advice of its outside legal counsel, that the failure to do so would be reasonably likely to result in by delivering (i) written notice (a breach of its fiduciary duties under applicable law, participate in discussions regarding any such Alternative Transaction and furnish information with respect “Mandatory Conversion Notice”) to the Company of its election to cause all or a specified portion (as set forth in such notice) of the TLC held by it, and its Subsidiaries pursuant not elected to a customary confidentiality agreement. The Company agrees be converted into Common Stock by the Company, to notify the Purchasers promptly if any third party contacts be converted into Common Stock (and the Company regarding any Alternative Transaction and shall thereupon elect to provide to the Purchasers convert such information with respect thereto as the Purchasers request. In the event that (i) (x) the Company terminates this Agreement pursuant to Section 9.1 for any reason other than pursuant to Section 9.1(cspecified amount of TLC held by each Lender so delivering a Mandatory Conversion Notice), including the failure to obtain the Stockholder Approval, or (y) the Purchasers terminate this Agreement pursuant to Section 9.1 for any reason other than pursuant to Section 9.1(d), including the failure to obtain the Stockholder Approval, and (ii) a certificate confirming the Company enters into any binding or non-binding term sheetaccuracy of such Lender’s representations and warranties in Section 11(d) hereof as of the time of such election, letter of intent or agreement relating to an Alternative Transaction in each case within twelve (12) months after such termination and consummates an Alternative Transaction within twenty-four (24) months after such termination, then the Company shall pay an alternative transaction fee equal to $1,000,000 (the "Alternative Transaction Fee") within two five Business Days after receipt of written notice from the consummation Company informing the Lenders of the Company’s election to convert less than all of the outstanding TLC in connection with a Qualifying IPO; (b) if the Company completes an IPO during the Option Period that does not meet all conditions of a Qualifying IPO without notifying the Lenders and soliciting their consent to waiver of the failed conditions so that such non-Qualifying IPO may become a Qualifying IPO by reason of such Alternative Transaction waiver, if granted, within one Business Day after completion of such non-Qualifying IPO, an amount equal to such Lender’s Ratable Percentage of 2% of the outstanding unpaid principal amount of TLC at the time of such IPO; (c) if the Company utilizes third party financing to prepay any unpaid principal amount of TLB and TLC during the Option Period and prior to the completion of a Qualifying IPO, within one Business Day after completion of such Qualifying IPO, an amount equal to such Lender’s Ratable Percentage of 2% of the principal amount of TLC that was prepaid prior to the completion of such Qualifying IPO with the proceeds of a third party financing, it being understood that if the Company utilizes operating cash flow of the Company or any of its Subsidiaries to fund the prepayment of TLB and TLC, no amount shall be due and payable pursuant to this Section 4(c); or (d) if the Company utilizes cash proceeds from asset sales to prepay greater than $150,000,000 of unpaid principal amount of TLB and TLC during the Option Period and prior to the completion of a Qualifying IPO (the "Payment Date") principal amount of TLC so prepaid in excess of the TLC’S pro rata share of such $150,000,000 prepayment of TLB and TLC, the “TLC ASP Amount”), within one Business Day after completion of such Qualifying IPO, an amount equal to such Lender’s Ratable Percentage of 2% of the Designated PurchasersTLC ASP Amount. In no event shall the aggregate amount, which are the Purchasers who executed the term sheet with the Companyif any, dated January 14, 2003, relating to the transactions contemplated by this Agreement. Such Alternative Transaction Fee shall be paid to the Designated Purchasers pro rata with their respective commitments set forth in such term sheet. The Company also shall be obligated Lenders pursuant to reimburse this Section 4 exceed 2% of the Purchasers for their out-of-pocket fees and expenses as provided in Section 10.11. From and after the Payment Date, to the extent that the Alternative Transaction Fee has not been paid, the Company shall continue to be obligated to immediately pay the Alternative Transaction Fee and such payment will be made together with interest at 10% compounded daily beginning on the Payment Date and ending outstanding unpaid principal amount of TLC on the date of payment. Payments must be made by wire transfer of cash or other immediately available fundsthis Agreement.