Common use of Company Payments Clause in Contracts

Company Payments. (i) In the event that (A) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e), either a Competing Alternative Transaction is consummated or the Company enters into a definitive agreement providing for a Competing Alternative Transaction and, whether or not during such twelve-month period, such Competing Alternative Transaction is subsequently consummated, then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, concurrently with the consummation of such Competing Alternative Transaction. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees and expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”); provided, however, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the Company pursuant to Section 7.3(b)(i) after the termination of this Agreement pursuant to Section 7.1(d), then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payable. (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), the Company shall pay to Parent the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, substantially concurrently with the occurrence of such termination.

Company Payments. (i) In Company shall pay to Parent in immediately available funds, within one (1) business day after notice of termination is delivered, an amount equal to $35 million (the event that "Company Termination Fee") if this Agreement is terminated by Parent pursuant to Section 8.1(g) hereof. -------------- (Aii) Company shall pay Parent in immediately available funds, within two (2) business days after demand by Parent, an amount equal to the Company Termination Fee, if this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 8.1(b) or Section 8.1(d) hereof as a result -------------- -------------- of the Company Stockholder Proposal not receiving the Company Requisite Vote upon the vote being taken thereon at the Company Stockholders' Meeting (or any adjournment or postponement thereof) and any of the following shall occur: (1) if following the execution and delivery of this Agreement date hereof and prior to the termination taking of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) such vote, a third party has publicly announced, and not publicly withdrawn, a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub Acquisition Proposal and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), and (C) within twelve (12) months following the termination of this Agreement pursuant a Company Acquisition (as defined below) is consummated; or (2) if following the date hereof and prior to Section 7.1(dthe taking of such vote, a third party has publicly announced, and not publicly withdrawn, a Company Acquisition Proposal and within twelve (12) or Section 7.1(e), either a Competing Alternative Transaction is consummated or months following the termination of this Agreement Company enters into a definitive an agreement or letter of intent providing for a Competing Alternative Transaction Company Acquisition. (iii) Company acknowledges that the agreements contained in this Section 8.3(b) are an integral part of the transactions contemplated by this -------------- Agreement, and that, without these agreements, Parent would have not entered into this Agreement. Accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3(b) and, whether or not during in order to obtain such twelve-month period-------------- payment, such Competing Alternative Transaction is subsequently consummatedParent makes a claim that results in a judgment against Company for the amounts set forth in this Section 8.3(b), then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, concurrently with the consummation of such Competing Alternative Transaction. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the its -------------- reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees costs and expenses (including all reasonable and documented attorneys' fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Subexpenses) incurred by or on behalf of Parent or Merger Sub in connection with such suit, together with interest on the authorization, preparation, negotiation, execution and performance amounts set forth in this Section 8.3(b) at the prime rate of the Chase Manhattan Bank -------------- in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3(b) shall not be in lieu of damages incurred in the -------------- event of breach of this Agreement and Agreement. (iv) For the purposes of this Section 8.3, "Company Acquisition" ----------- means any of the following transactions (other than the transactions contemplated hereby by this Agreement): (the “Parent Expenses”); providedA) a merger, howeverconsolidation, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to Section 7.3(b)(iwhich the stockholders of Company immediately preceding such transaction hold less than fifty percent (50%) after of the termination aggregate equity interest in the surviving or resulting entity of this Agreement pursuant such transaction; (B) a sale or other disposition by Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of Company's assets immediately prior to Section 7.1(dsuch sale; or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payableoutstanding shares of capital stock of Company. (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), the Company shall pay to Parent the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, substantially concurrently with the occurrence of such termination.

Company Payments. (i) In Company shall pay to Parent in immediately available funds, within one (1) business day after notice of termination is delivered, an amount equal to $35 million (the event that "Company Termination Fee") if this Agreement is terminated by Parent pursuant to Section 8.1(g) hereof. -------------- (Aii) Company shall pay Parent in immediately available funds, within two (2) business days after demand by Parent, an amount equal to the Company Termination Fee, if this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 8.1(b) or Section 8.1(d) hereof as a result -------------- -------------- of the Company Stockholder Proposal not receiving the Company Requisite Vote upon the vote being taken thereon at the Company Stockholders' Meeting (or any adjournment or postponement thereof) and any of the following shall occur: (1) if following the execution and delivery of this Agreement date hereof and prior to the termination taking of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) such vote, a third party has publicly announced, and not publicly withdrawn, a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub Acquisition Proposal and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), and (C) within twelve (12) months following the termination of this Agreement pursuant a Company Acquisition (as defined below) is consummated; or (2) if following the date hereof and prior to Section 7.1(dthe taking of such vote, a third party has publicly announced, and not publicly withdrawn, a Company Acquisition Proposal and within twelve (12) or Section 7.1(e), either a Competing Alternative Transaction is consummated or months following the termination of this Agreement Company enters into a definitive an agreement or letter of intent providing for a Competing Alternative Transaction Company Acquisition. (iii) Company acknowledges that the agreements contained in this Section 8.3(b) are an integral part of the transactions contemplated by this -------------- Agreement, and that, without these agreements, Parent would have not entered into this Agreement. Accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3(b) and, whether or not during in order to obtain such twelve-month period------------- payment, such Competing Alternative Transaction is subsequently consummatedParent makes a claim that results in a judgment against Company for the amounts set forth in this Section 8.3(b), then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, concurrently with the consummation of such Competing Alternative Transaction. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the its ---------------------------------------- reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees costs and expenses (including all reasonable and documented attorneys' fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Subexpenses) incurred by or on behalf of Parent or Merger Sub in connection with such suit, together with interest on the authorization, preparation, negotiation, execution and performance amounts set forth in this Section payment was required to be made. Payment of the fees described in this Section 8.3(b) shall not be in lieu of damages incurred in the -------------- event of breach of this Agreement and Agreement. (iv) For the purposes of this Section 8.3, "Company ----------- Acquisition" means any of the following transactions (other than the transactions contemplated hereby by this Agreement): (the “Parent Expenses”); providedA) a merger, howeverconsolidation, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to Section 7.3(b)(iwhich the stockholders of Company immediately preceding such transaction hold less than fifty percent (50%) after of the termination aggregate equity interest in the surviving or resulting entity of this Agreement pursuant such transaction; (B) a sale or other disposition by Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of Company's assets immediately prior to Section 7.1(dsuch sale; or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payableoutstanding shares of capital stock of Company. (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), the Company shall pay to Parent the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, substantially concurrently with the occurrence of such termination.

Company Payments. (i) In the event that If (A) this Agreement is validly terminated pursuant to Section 8.1(c) [Termination Date] or Section 8.1(e) [Company Breach]; (B) following the execution and delivery of this Agreement and prior to the such termination of this Agreement pursuant an Acquisition Proposal was made to Section 7.1(d) the Company or Section 7.1(e) (I) a any of its Subsidiaries and was evaluated by the Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), announced; and (C) within twelve (12) months following the such termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e)Agreement, either a Competing Alternative an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for a Competing Alternative the consummation of an Acquisition Transaction and, whether or not during and such twelve-month period, such Competing Alternative Acquisition Transaction is subsequently consummated, then the Company shall pay promptly (and in any event within one (1) Business Day of entering into or consummation of such Acquisition Transaction) pay, or cause to be paid, to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), concurrently with all references to “20%” in the consummation definition of such Competing Alternative “Acquisition Transaction” will be deemed to be references to “50%.” (ii) In the event that If this Agreement is validly terminated by Parent pursuant to Section 7.1(d8.1(f) then[Company Board Recommendation Change], at the time of such termination, then the Company shall pay to Parent an amount equal to the reasonable promptly (and documented out of pocket fees and expenses incurred by Parent in any event within one (1) Business Day following such termination) pay, or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees and expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”); provided, however, that the amount of Parent Expenses required cause to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the Company pursuant to Section 7.3(b)(i) after the termination of this Agreement pursuant to Section 7.1(d)paid, then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payable. (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), the Company shall pay to Parent the Company Termination Fee, Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) If this Agreement is validly terminated by the Company pursuant to Section 8.1(h) [Entry into an Alternative Acquisition Agreement], substantially then the Company shall concurrently with such termination pay, or cause to be paid, to Parent the occurrence Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iv) If this Agreement is validly terminated by Parent or the Company pursuant Section 8.1(d) [Failure of Requisite Shareholder Approval], then the Company shall promptly (and in any event within one (1) Business Day following such termination) pay, or cause to be paid, to Parent the Company Termination Fee and Parent’s actual and reasonable out-of-pocket expenses incurred in connection with this Agreement and the Transactions (the “Expense Reimbursement”) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.

Company Payments. (i) In the event that (A) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e), either a Competing Alternative Transaction is consummated or the Company enters into a definitive agreement providing for a Competing Alternative Transaction and, whether or not during such twelve-month period, such Competing Alternative Transaction is subsequently consummated, then the Company shall pay to Parent the Company Termination Fee as reducedin immediately available funds, if applicablewithin one (1) business day after demand by Parent, by an amount equal to the amount, if any, by which (x) (U.S.) $2,330,000 exceeds (y) the amount, if any, by which (a) the net (before tax) proceeds of disposition of the Option Shares (as defined in the Stock Option Agreement) exceeds (b) the amount of Parent Expenses previously paid which results when $2.64 is multiplied by the Company number of Option Shares which have been disposed of (the "TERMINATION FEE") if this Agreement is terminated by Parent pursuant to Section 7.3(b)(ii8.1(g) or (h) (provided, however, that if the Option Shares have not been disposed of, then the amount provided for in subsection (b)(i)(y) shall be deemed to be zero). Company may pay the Termination Fee to Parent (without demand having been made by Parent prior thereto) on not less than 10 business days' notice to Parent at any time after the Termination Date (as defined in the Stock Option Agreement) provided that no such payment may be made without the consent of Parent if (1) prior to such time an Acquisition Proposal has been made by a party other than Parent which has not been consummated or abandoned (or, by wire transfer if consummated, the terms of immediately the transaction do not provide that Parent shall have received payment of the appropriate amount in respect of its Option Shares or Options prior to such time on the same terms and conditions as are available funds to an account other holders of Company's securities) or accounts designated (2) Parent has elected, prior to the date specified for payment of the Termination Fee, to retain the Option and the Option Shares in writing by Parentlieu of the payment of the Termination Fee. Upon the payment of the aggregate cash portion of the Termination Fee, concurrently with Parent agrees to surrender all unexercised options under the consummation of such Competing Alternative TransactionStock Option Agreement (and all Option Shares acquired thereunder which Parent continues to hold). (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent in immediately available funds, within one (1) business day after demand by Parent, an amount equal to the reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees and expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”); provided, however, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by (calculated on the Company pursuant to Section 7.3(b)(i) after the termination of this Agreement pursuant to Section 7.1(d)basis set out in, then the Parent Expenses and subject to the extent previously paid by the Company pursuant to this Section 7.3(b)(iiprovisions of, subsection (b)(i)) shall be credited against the Company Termination Fee then payable. (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), the Company shall pay to Parent the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, substantially concurrently with the occurrence of such termination.if:

Company Payments. (i) In Company shall pay to Parent in immediately available funds, within one (1) business day after notice of termination is delivered, an amount equal to $35 million (the event that "COMPANY TERMINATION FEE") if this Agreement is terminated by Parent pursuant to Section 8.1(g) hereof. (Aii) Company shall pay Parent in immediately available funds, within two (2) business days after demand by Parent, an amount equal to the Company Termination Fee, if this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 8.1(b) or Section 8.1(d) hereof as a result of the Company Stockholder Proposal not receiving the Company Requisite Vote upon the vote being taken thereon at the Company Stockholders' Meeting (or any adjournment or postponement thereof) and any of the following shall occur: (1) if following the execution and delivery of this Agreement date hereof and prior to the termination taking of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) such vote, a third party has publicly announced, and not publicly withdrawn, a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub Acquisition Proposal and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), and (C) within twelve (12) months following the termination of this Agreement pursuant a Company Acquisition (as defined below) is consummated; or (2) if following the date hereof and prior to Section 7.1(dthe taking of such vote, a third party has publicly announced, and not publicly withdrawn, a Company Acquisition Proposal and within twelve (12) or Section 7.1(e), either a Competing Alternative Transaction is consummated or months following the termination of this Agreement Company enters into a definitive an agreement or letter of intent providing for a Competing Alternative Transaction Company Acquisition. (iii) Company acknowledges that the agreements contained in this Section 8.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would have not entered into this Agreement. Accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3(b) and, whether or not during in order to obtain such twelve-month periodpayment, such Competing Alternative Transaction is subsequently consummatedParent makes a claim that results in a judgment against Company for the amounts set forth in this Section 8.3(b), then the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3(b) at the prime rate of the Chase Manhattan Bank in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3(b) shall not be in lieu of damages incurred in the event of breach of this Agreement. (iv) For the purposes of this Section 8.3, "COMPANY ACQUISITION" means any of the following transactions (other than the transactions contemplated by this Agreement): (A) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Company Termination Fee as reducedpursuant to which the stockholders of Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interest in the surviving or resulting entity of such transaction; (B) a sale or other disposition by Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of Company's assets immediately prior to such sale; or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then outstanding shares of capital stock of Company. (c) Parent Payments. (i) Parent shall pay to Company in immediately available funds, within one (1) business day after notice of termination is delivered, an amount equal to $35 million (the "PARENT TERMINATION FEE") if applicablethis Agreement is terminated by Company pursuant to Section 8.1(h) hereof. (ii) Parent shall pay Company in immediately available funds, within two (2) business days after demand by Company, an amount equal to the amount of Parent Expenses previously paid Termination Fee, if this Agreement is terminated by the Company or Parent, as applicable, pursuant to Section 7.3(b)(ii), by wire transfer 8.1(b) or Section 8.1(d) hereof as a result of immediately available funds the Parent Stockholder Proposal not receiving the Parent Requisite Vote upon the vote being taken thereon at the Parent Stockholders' Meeting (or any adjournment or postponement thereof) and any of the following shall occur: (1) if following the date hereof and prior to an account or accounts designated in writing by Parent, concurrently with the consummation taking of such Competing Alternative Transaction. vote, a third party has publicly announced, and not publicly withdrawn, a Parent Acquisition Proposal and within twelve (ii12) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees and expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”); provided, however, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the Company pursuant to Section 7.3(b)(i) after months following the termination of this Agreement pursuant to Section 7.1(d), then a Parent Acquisition (as defined below) is consummated; or (2) if following the Parent Expenses date hereof and prior to the extent previously paid by taking of such vote, a third party has publicly announced, and not publicly withdrawn, a Parent Acquisition Proposal and within twelve (12) months following the Company pursuant to termination of this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payableAgreement Parent enters into an agreement or letter of intent providing for a Parent Acquisition. (iii) In Parent acknowledges that the event that agreements contained in this Agreement is validly terminated Section 8.3(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Company would not have entered into this Agreement. Accordingly, if Parent fails to pay in a timely manner the amounts due pursuant to this Section 7.1(f8.3(c) and, in order to obtain such payment, Company makes a claim that results in a judgment against Parent for the amounts set forth in this Section 8.3(c), Section 7.1(h) or Section 7.1(j), the Company Parent shall pay to Company its reasonable costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amounts set forth in this Section 8.3(c) at the prime rate of The Chase Manhattan Bank in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3(c) shall not be in lieu of damages incurred in the event of breach of this Agreement. (iv) For the purposes of this Section 8.3, "PARENT ACQUISITION" means any of the following transactions (other than the transactions contemplated by this Agreement): (A) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Parent pursuant to which the Company Termination Fee, aggregate percentage equity interest in the surviving or resulting entity of such transaction held by wire transfer the former holders of HDD Common Stock represents 50% or less of the aggregate equity interest in Parent represented by their shares of HDD Common Stock immediately available funds before the transaction; (B) a sale or other disposition by Parent of assets representing in excess of fifty percent (50%) of the aggregate fair market value of assets that would have been part of the HDD Business and transferred to Spinco if the Separation had taken place; or (C) the acquisition by any person or group (including by way of a tender offer or an account exchange offer or accounts designated in writing issuance by Parent), substantially concurrently with directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the occurrence voting power of such terminationthe HDD Common Stock then outstanding.

Company Payments. (i) In the event that If (A) this Agreement is validly terminated (x) pursuant to Section 7.1(c) at a time when the Requisite Stockholder Approval has not been obtained (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 7.1(c)) or Section 7.1(d) or (y) by Parent pursuant to Section 7.1(e) (each, an “Applicable Termination”); (B) following the execution and delivery of this Agreement and prior to an Applicable Termination, an Acquisition Proposal has been communicated to the termination of this Agreement pursuant Company Board (and not subsequently withdrawn or abandoned prior to Section 7.1(dthe applicable Termination Date) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub disclosed (and not publicly withdrawn or otherwise abandoned, publicly abandoned at least two (B2) this Agreement Business Days prior to the Company Stockholder Meeting (or an adjournment or postponement thereof) at which a vote is validly terminated pursuant to Section 7.1(d) or Section 7.1(etaken on the Merger), ; and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e)such Applicable Termination, either a Competing Alternative an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for a Competing Alternative Transaction and, whether or not during such twelve-month period, such Competing Alternative Transaction is subsequently consummatedthe consummation of an Acquisition Transaction, then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, will substantially concurrently with the earlier of the execution of such definitive agreement and the consummation of such Competing Alternative Acquisition Transaction, pay to each of TPG IX Management, LLC and Francisco Partners Management L.P. (the “Parent Affiliated Management Companies”), an aggregate amount equal to $196,000,000 (the “Company Termination Fee”), in accordance with such Parent Affiliated Management Company’s Pro Rata Share, in each case pursuant to the payment instructions which have been provided to the Company by Parent as of the Agreement Date, or as further updated by written notice by Parent from time to time. For purposes of this Section 7.3(b)(i), all references to “20%” and “80%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%.” (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees and expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”); provided, however, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the Company pursuant to Section 7.3(b)(i) after the termination of this Agreement pursuant to Section 7.1(d), then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payable. (iii) In the event that If this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), then the Company shall must promptly (and in any event within two (2) Business Days) following such termination pay to Parent Affiliated Management Companies the Company Termination Fee, by wire transfer of immediately available funds in accordance with their respective Pro Rata Share. (iii) If this Agreement is validly terminated pursuant to an account Section 7.1(h), then the Company must prior to or accounts designated in writing by Parent, substantially concurrently with (but no later than the occurrence date of) such termination pay to the Parent Affiliated Management Companies the Company Termination Fee, in accordance with such Parent Affiliated Management Company’s respective Pro Rata Share; provided, that if the Company terminates this Agreement pursuant to Section 7.1(h) and enters into an Alternative Acquisition Agreement prior to the No-Shop Period Start Date with respect to a Superior Proposal, then the “Company Termination Fee” shall mean an amount equal to $98,000,000. (iv) Each of such terminationthe Parent Affiliated Management Companies shall be express third party beneficiaries of, and shall have the right to enforce, this Section 7.3(b).

Company Payments. (i) In Company shall pay to Parent in immediately available funds, within one (1) business day after demand by Parent, an amount equal to $1,000,000 (the event that "TERMINATION FEE") plus up to $500,000 for all documented Transaction Expenses incurred by Parent prior to such termination (the "EXPENSE REIMBURSEMENT"), if this Agreement is terminated by Parent pursuant to Section 8.1(f) or 8.1(g). (ii) Company shall pay Parent in immediately available funds, within one (1) business day after demand by Parent, an amount equal to the Expense Reimbursement, if this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 8.1(d); (iii) Company shall pay Parent in immediately available funds, upon consummation of any Company Acquisition (as defined below), an amount equal to the Termination Fee plus the Expense Reimbursement (if not already paid), if: (A) this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 8.1(b) or 8.1(d); (B) following the execution and delivery of this Agreement date hereof and prior to the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction Agreement, an Acquisition Proposal shall have been publicly announced or generally disclosed by any Person other than Parent Company or Merger Sub and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant the party making such Acquisition Proposal to Section 7.1(d) or Section 7.1(e), and the Company Shareholders; and (C) within twelve six (126) months following the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e)Agreement, either a Competing Alternative Transaction Company Acquisition is consummated or the Company enters into a definitive an agreement or letter of intent providing for a Competing Alternative Transaction Company Acquisition, in either case, with any party. (iv) Company acknowledges that the agreements contained in this Section 8.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3(b) and, whether or not during in order to obtain such twelve-month periodpayment, such Competing Alternative Transaction is subsequently consummatedParent makes a claim that results in a judgement against Company for the amounts set forth in this Section 8.3(b), then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, concurrently with the consummation of such Competing Alternative Transaction. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the its reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees costs and expenses (including all reasonable and documented attorneys' fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Subexpenses) incurred by or on behalf of Parent or Merger Sub in connection with such suit, together with interest on the authorization, preparation, negotiation, execution and performance amounts set forth in this Section 8.3(b) at the prime rate of LaSalle Bank National Association in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3(b) shall not be in lieu of damages incurred in the event of intentional or willful breach of this Agreement and Agreement. (v) For purposes of this Agreement, "COMPANY ACQUISITION" means any of the following transactions (other than the transactions contemplated hereby by this Agreement), either as a single transaction or series of transactions: (i) a merger, amalgamation, arrangement, reorganization, share exchange, consolidation, recapitalization, liquidation, dissolution or other business combination involving Company, pursuant to which the “Parent Expenses”); provided, however, that Company Shareholders immediately preceding such transaction hold less than 50% of the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) aggregate equity interests in the aggregate. In surviving or resulting entity of such transaction, (ii) the event that acquisition or purchase of 50% or more of equity securities of Company (including by way of tender offer or an exchange offer or issuance by Company) or the Company Termination Fee later becomes payable by the Company pursuant right to Section 7.3(b)(i) after the termination of this Agreement pursuant to Section 7.1(d)acquire such equity securities, then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payable. or (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f)sale, Section 7.1(hlease, license or other disposition (by sale, merger or otherwise) of 50% or Section 7.1(j)more of the book or market value of assets (including, the without limitation, securities of any Subsidiary of Company) of Company shall pay to Parent the Company Termination Feeand its Subsidiaries, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, substantially concurrently with the occurrence of such terminationtaken as a whole.

Company Payments. (i) In the event that If (A) following (i) this Agreement is validly terminated by Parent or the execution and delivery Company pursuant to Section 6.1(b) or Section 6.1(d), (ii) at or prior to the time of such termination of this Agreement an Alternative Acquisition Proposal shall have been publicly disclosed (and such Alternative Acquisition Proposal shall not have been unconditionally and publicly withdrawn prior to the date of the Company Stockholders Meeting), (iii) in the case of a termination of this Agreement by Parent pursuant to Section 6.1(b), Parent demonstrates that it would reasonably have been expected that the Merger would have been consummated prior to the termination of this Agreement pursuant but for the making or pendency of such Alternative Acquisition Proposal (it being clarified that this Section 6.3(b)(A)(iii) shall not apply to Section 7.1(d) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub and not withdrawn or otherwise abandoned, (B) termination of this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(eby the Company), and (Civ) within twelve (12) months following after the date of termination of this Agreement pursuant to Section 7.1(dAgreement, a Company Acquisition (as defined below) or Section 7.1(e), either a Competing Alternative Transaction is consummated or the Company enters into a definitive agreement or binding letter of intent providing for a Competing Alternative Transaction and, whether or not during such twelve-month period, such Competing Alternative Transaction Company Acquisition (which is subsequently consummated, then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, concurrently with the consummation of such Competing Alternative Transaction. (iiB) In the event that this Agreement is validly terminated by Parent pursuant to Section 7.1(d6.1(e), then (x) thenif termination of this Agreement is pursuant to Section 6.1(b) or Section 6.1(d), at within one (1) business day after consummation of the time Company Acquisition described above, or (y) if termination of such terminationthis Agreement is pursuant to Section 6.1(e), within one (1) business day after the termination of this Agreement, the Company shall cause to be paid to Parent, in cash in immediately available funds, a non-refundable termination fee in the amount of $1.2 million. In addition, in any of the foregoing circumstances where the Company is obligated to pay to a termination fee, the Company shall also reimburse Parent an amount equal to the for Parent’s reasonable and documented out of out-of-pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated herebythereby, including without limitation not to exceed $1 million, less any commitment fees and amounts previously paid by the reasonable and documented out Company on account of pocket fees and such expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub as provided in connection with the authorization, preparation, negotiation, execution and performance last sentence of this Agreement and the transactions contemplated hereby paragraph (the “Parent Expenses”); provided, however, that within five (5) business days after the amount Company’s receipt of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregatereasonable documentation of such expenses. In the event that the Company Termination Fee later becomes payable (1) this Agreement is validly terminated by Parent or the Company pursuant to Section 7.3(b)(i6.1(d), and (2) after all of the termination conditions to the Company’s obligation to consummate the Merger set forth in Sections 5.1 and 5.3 (other than the conditions set forth in Sections 5.1(a), (b) and (c) and Sections 5.3(e) and 5.3(f)) were satisfied as of this Agreement pursuant to Section 7.1(d)the time of such termination, then the Company shall reimburse Parent Expenses for Parent’s reasonable and documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated thereby, not to the extent exceed $500,000, less any amounts previously paid by the Company pursuant to this Section 7.3(b)(iion account of such expenses, within five (5) shall be credited against business days after the Company Termination Fee then payableCompany’s receipt of reasonable documentation of such expenses. (iiiii) In The Company acknowledges that the event that agreements contained in this Agreement is validly terminated pursuant Section 6.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay when due any amount payable by the Company under this Section 7.1(f)6.3, then: (A) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 7.1(h6.3; and (B) or Section 7.1(j), the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to five percent (5%). Payment of the fees described in this Section 6.3(b) shall not be in lieu of damages incurred in the event of willful breach of this Agreement. (iii) For the purposes of this Agreement, “Company Acquisition” shall mean any of the following transactions (other than the transactions contemplated by this Agreement and other than any transactions in which the Company Termination Feeis acquired by Parent or any of its affiliates): (A) a merger, by wire transfer consolidation, business combination, recapitalization or similar transaction involving the Company pursuant to which the stockholders of the Company immediately available funds to an account preceding such transaction do not hold (directly or accounts designated indirectly) at least 50% of the aggregate equity interests in writing by Parent, substantially concurrently with the occurrence surviving or resulting entity of such terminationtransaction or a parent entity following such transaction; (B) a transaction that involves, directly or indirectly, a sale or other disposition by the Company of assets that represent in excess of 50% of the consolidated assets of the Company and its Subsidiaries or a business or businesses that constitute or account for at least 50% of the consolidated net revenues of the Company and its Subsidiaries, taken as a whole, immediately prior to such sale; or (C) the acquisition by any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership of shares representing in excess of 50% of the voting power of the then outstanding shares of capital stock of the Company.

Company Payments. (i) In the event that this Agreement is terminated (A) following by the execution Company pursuant to Section 9.1(d) or (B) by Acquisition pursuant to Section 9.1(g) or Section 9.1(h), then in either case, the Company shall pay to Acquisition the Company Termination Fee plus, Acquisition’s reasonable out-of-pocket expenses, including attorney’s fees, actually incurred by Acquisition and delivery of this Agreement and its Affiliates in connection with the Merger on or prior to the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e), either a Competing Alternative Transaction is consummated or the Company enters into a definitive agreement providing for a Competing Alternative Transaction and, whether or not during such twelve-month period, such Competing Alternative Transaction is subsequently consummated, then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii)Agreement, by wire transfer of immediately available funds to an account or accounts designated in writing by ParentAcquisition, concurrently with the consummation of within two (2) Business Days after such Competing Alternative Transactiontermination. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d(A) then, at the time of such termination, the Company shall pay to Parent a bona fide written offer or proposal (other than an amount equal to the reasonable and documented out of pocket fees and expenses incurred offer or proposal by Parent Acquisition or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees and expenses ) to engage in an Acquisition Transaction (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance provided that for purposes of this Agreement and Section 9.3(b)(ii), all percentages included in the transactions contemplated hereby (the “Parent Expenses”); provided, however, that the amount definition of Parent Expenses required Acquisition Transaction shall be increased to be paid under this Section 7.3(b)(ii50%) shall have been made after the date hereof and prior to the Company Shareholders Meeting, and not exceed $4,500,000 withdrawn as of the Company Shareholders Meeting, (four million five-hundred thousand dollarsB) following the occurrence of an event described in the aggregate. In the event that the Company Termination Fee later becomes payable preceding clause (A), this Agreement is terminated by the Company pursuant to Section 7.3(b)(i9.1(c) (provided that the Principal Shareholders unanimously voted in favor of the transactions contemplated hereby) and (C) within 12 months after the termination of this Agreement pursuant to Section 7.1(d)Agreement, then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against consummates the Company Termination Fee transactions contemplated by such same Acquisition Transaction; then payable. (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), the Company shall pay to Parent Acquisition the Company Termination FeeFee plus, Acquisition’s reasonable out-of-pocket expenses, including attorney’s fees, actually incurred by Acquisition and its Affiliates in connection with the Merger on or prior to the termination of this Agreement, by wire transfer of immediately available funds to an account or accounts designated in writing by ParentAcquisition, substantially concurrently with within two (2) Business Days following the consummation of the transactions contemplated by such same Acquisition Transaction. (iii) The parties hereto acknowledge and hereby agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of such terminationdifferent events.

Company Payments. (i) In Company shall pay to Parent in immediately available funds, within one (1) business day after notice of termination is delivered, an amount equal to $35 million (the event that "Company Termination Fee") if this Agreement is terminated by Parent pursuant to Section 8.1(g) hereof. (Aii) Company shall pay Parent in immediately available funds, within two (2) business days after demand by Parent, an amount equal to the Company Termination Fee, if this Agreement is terminated by Parent or Company, as applicable, pursuant to Section 8.1(b) or Section 8.1(d) hereof as a result of the Company Stockholder Proposal not receiving the Company Requisite Vote upon the vote being taken thereon at the Company Stockholders' Meeting (or any adjournment or postponement thereof) and any of the following shall occur: (1) if following the execution and delivery of this Agreement date hereof and prior to the termination taking of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) such vote, a third party has publicly announced, and not publicly withdrawn, a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub Acquisition Proposal and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), and (C) within twelve (12) months following the termination of this Agreement pursuant a Company Acquisition (as defined below) is consummated; or (2) if following the date hereof and prior to Section 7.1(dthe taking of such vote, a third party has publicly announced, and not publicly withdrawn, a Company Acquisition Proposal and within twelve (12) or Section 7.1(e), either a Competing Alternative Transaction is consummated or months following the termination of this Agreement Company enters into a definitive an agreement or letter of intent providing for a Competing Alternative Transaction Company Acquisition. (iii) Company acknowledges that the agreements contained in this Section 8.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would have not entered into this Agreement. Accordingly, if Company fails to pay in a timely manner the amounts due pursuant to this Section 8.3(b) and, whether or not during in order to obtain such twelve-month periodpayment, such Competing Alternative Transaction is subsequently consummatedParent makes a claim that results in a judgment against Company for the amounts set forth in this Section 8.3(b), then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, concurrently with the consummation of such Competing Alternative Transaction. (ii) In the event that this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the its reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees costs and expenses (including all reasonable and documented attorneys' fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Subexpenses) incurred by or on behalf of Parent or Merger Sub in connection with such suit, together with interest on the authorization, preparation, negotiation, execution and performance amounts set forth in this Section 8.3(b) at the prime rate of the Chase Manhattan Bank in effect on the date such payment was required to be made. Payment of the fees described in this Section 8.3(b) shall not be in lieu of damages incurred in the event of breach of this Agreement and Agreement. (iv) For the purposes of this Section 8.3, "Company Acquisition" means any of the following transactions (other than the transactions contemplated hereby by this Agreement): (the “Parent Expenses”); providedA) a merger, howeverconsolidation, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the business combination, recapitalization, liquidation, dissolution or similar transaction involving Company pursuant to Section 7.3(b)(iwhich the stockholders of Company immediately preceding such transaction hold less than fifty percent (50%) after of the termination aggregate equity interest in the surviving or resulting entity of this Agreement pursuant such transaction; (B) a sale or other disposition by Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of Company's assets immediately prior to Section 7.1(dsuch sale; or (C) the acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of fifty percent (50%) of the voting power of the then the Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payableoutstanding shares of capital stock of Company. (iii) In the event that this Agreement is validly terminated pursuant to Section 7.1(f), Section 7.1(h) or Section 7.1(j), the Company shall pay to Parent the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, substantially concurrently with the occurrence of such termination.

Company Payments. (i) In the event that If (A) this Agreement is validly terminated pursuant to (x) Section 8.1(c) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the limitations set forth in Section 8.1(c)(i), Section 8.1(c)(ii) or Section 8.1(d)) or (y) by Parent pursuant to Section 8.1(e) (each, an “Applicable Termination”); (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative an Applicable Termination, an Acquisition Proposal for an Acquisition Transaction shall have has been publicly announced by any Person other than Parent or Merger Sub disclosed and not withdrawn or otherwise abandoned, (B) this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(e), ; and (C) within twelve nine (129) months following the termination of this Agreement pursuant to Section 7.1(d) or Section 7.1(e)such Applicable Termination, either a Competing Alternative an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for a Competing Alternative Transaction andthe consummation of an Acquisition Transaction, whether or not during such twelve-month period, such Competing Alternative Transaction which is subsequently thereafter consummated, then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, will concurrently with the consummation of such Competing Alternative Acquisition Transaction pay to Parent an amount equal to $288,000,000 (the “Company Termination Fee”), in accordance with the payment instructions which have been provided to the Company by Parent as of the Agreement Date, or as further updated by written notice by Parent from time to time. For purposes of this Section 8.3(b)(i), all references to “20%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%.” (ii) In the event that If this Agreement is validly terminated pursuant to Section 7.1(d) then, at the time of such termination, the Company shall pay to Parent an amount equal to the reasonable and documented out of pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, including without limitation any commitment fees and the reasonable and documented out of pocket fees and expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”); provided, however, that the amount of Parent Expenses required to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the Company pursuant to Section 7.3(b)(i) after the termination of this Agreement pursuant to Section 7.1(d8.1(f), then the Company must promptly (and in any event within two (2) Business Days) following such termination pay to Parent Expenses to the extent previously paid by the Company pursuant to this Section 7.3(b)(ii) shall be credited against the Company Termination Fee then payableFee, in accordance with the payment instructions which have been provided to the Company by Parent as of the Agreement Date, or as further updated by written notice by Parent from time to time. (iii) In the event that If this Agreement is validly terminated pursuant to Section 7.1(f8.1(h), Section 7.1(h) or Section 7.1(j), then the Company shall must prior to or concurrently with such termination pay to Parent the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated Fee in writing by Parent, substantially concurrently accordance with the occurrence payment instructions which have been provided to the Company by Parent as of such terminationthe Agreement Date, or as further updated by written notice by Parent from time to time; provided, that if the Company terminates this Agreement pursuant to Section 8.1(h) and enters into an Alternative Acquisition Agreement with an Excluded Party prior to the No-Shop Period Start Date with respect to a Superior Proposal, then the “Company Termination Fee” shall mean an amount equal to $91,000,000.

Company Payments. (I) If (A) (i) In this Agreement is validly terminated by Parent or the event that Company pursuant to Section 6.1(b) or Section 6.1(d), (Aii) following at or prior to the execution and delivery time of such termination of this Agreement an Alternative Acquisition Proposal shall have been publicly disclosed (and such Alternative Acquisition Proposal shall not have been unconditionally and publicly withdrawn prior to the date of the Company Stockholders Meeting), (iii) in the case of a termination of this Agreement by Parent pursuant to Section 6.1(b), Parent demonstrates that it would reasonably have been expected that the Merger would have been consummated prior to the termination of this Agreement pursuant but for the making or pendency of such Alternative Acquisition Proposal (it being clarified that this Section 6.3(b)(A)(iii) shall not apply to Section 7.1(d) or Section 7.1(e) (I) a Company Board Recommendation Change occurs or (II) a Competing Alternative Transaction shall have been publicly announced by any Person other than Parent or Merger Sub and not withdrawn or otherwise abandoned, (B) termination of this Agreement is validly terminated pursuant to Section 7.1(d) or Section 7.1(eby the Company), and (Civ) within twelve (12) months following after the date of termination of this Agreement pursuant to Section 7.1(dAgreement, a Company Acquisition (as defined below) or Section 7.1(e), either a Competing Alternative Transaction is consummated or the Company enters into a definitive agreement or binding letter of intent providing for a Competing Alternative Transaction and, whether or not during such twelve-month period, such Competing Alternative Transaction Company Acquisition (which is subsequently consummated, then the Company shall pay to Parent the Company Termination Fee as reduced, if applicable, by an amount equal to the amount of Parent Expenses previously paid by the Company pursuant to Section 7.3(b)(ii), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, concurrently with the consummation of such Competing Alternative Transaction. (iiB) In the event that this Agreement is validly terminated by Parent pursuant to Section 7.1(d6.1(e), then (x) thenif termination of this Agreement is pursuant to Section 6.1(b) or Section 6.1(d), at within one (1) business day after consummation of the time Company Acquisition described above, or (y) if termination of such terminationthis Agreement is pursuant to Section 6.1(e), within one (1) business day after the termination of this Agreement, the Company shall cause to be paid to Parent, in cash in immediately available funds, a non-refundable termination fee in the amount of $1.2 million. In addition, in any of the foregoing circumstances where the Company is obligated to pay to a termination fee, the Company shall also reimburse Parent an amount equal to the for Parent's reasonable and documented out of out-of-pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated herebythereby, including without limitation not to exceed $1 million, less any commitment fees amounts previously paid by the Company on account of such expenses as provided in the last sentence of this paragraph (the "PARENT EXPENSES"), within five (5) business days after the Company's receipt of reasonable documentation of such expenses. In the event that (1) this Agreement is validly terminated by Parent or the Company pursuant to Section 6.1(d), and (2) all of the conditions to the Company's obligation to consummate the Merger set forth in Sections 5.1 and 5.3 (other than the conditions set forth in Sections 5.1(a), (b) and (c) and Sections 5.3(e) and 5.3(f)) were satisfied as of the time of such termination, then the Company shall reimburse Parent for Parent's reasonable and documented out of out-of-pocket fees and expenses (including all reasonable and documented fees and expenses of outside counsel, accountants, investment bankers, experts and consultants to Parent or Merger Sub) incurred by or on behalf of Parent or Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”); providedthereby, however, that the amount of Parent Expenses required not to be paid under this Section 7.3(b)(ii) shall not exceed $4,500,000 (four million five-hundred thousand dollars) in the aggregate. In the event that the Company Termination Fee later becomes payable by the Company pursuant to Section 7.3(b)(i) after the termination of this Agreement pursuant to Section 7.1(d)500,000, then the Parent Expenses to the extent less any amounts previously paid by the Company pursuant to this Section 7.3(b)(iion account of such expenses, within five (5) shall be credited against business days after the Company Termination Fee then payableCompany's receipt of reasonable documentation of such expenses. (iiiII) In The Company acknowledges that the event that agreements contained in this Agreement is validly terminated pursuant Section 6.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay when due any amount payable by the Company under this Section 7.1(f)6.3, then: (A) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 7.1(h6.3; and (B) or Section 7.1(j), the Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to five percent (5%). Payment of the fees described in this Section 6.3(b) shall not be in lieu of damages incurred in the event of willful breach of this Agreement. (III) For the purposes of this Agreement, "COMPANY ACQUISITION" shall mean any of the following transactions (other than the transactions contemplated by this Agreement and other than any transactions in which the Company Termination Feeis acquired by Parent or any of its affiliates): (A) a merger, by wire transfer consolidation, business combination, recapitalization or similar transaction involving the Company pursuant to which the stockholders of the Company immediately available funds to an account preceding such transaction do not hold (directly or accounts designated indirectly) at least 50% of the aggregate equity interests in writing by Parent, substantially concurrently with the occurrence surviving or resulting entity of such terminationtransaction or a parent entity following such transaction; (B) a transaction that involves, directly or indirectly, a sale or other disposition by the Company of assets that represent in excess of 50% of the consolidated assets of the Company and its Subsidiaries or a business or businesses that constitute or account for at least 50% of the consolidated net revenues of the Company and its Subsidiaries, taken as a whole, immediately prior to such sale; or (C) the acquisition by any Person or "group" (as defined in the Exchange Act and the rules promulgated thereunder) (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership of shares representing in excess of 50% of the voting power of the then outstanding shares of capital stock of the Company.