Common use of Company Payments Clause in Contracts

Company Payments. (i) The Company shall, at or prior to the earlier to occur of (A) the date that is three Business Days following the termination of this Agreement pursuant to Section 8.1 (other than any termination pursuant to Section 8.1(g)) and (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for an amount not to exceed $1,250,000 in cash, by wire transfer of immediately available funds, for Purchaser’s documented expenses incurred in connection with this Agreement and the transactions contemplated hereby (collectively, the “Expense Reimbursement”). (ii) If this Agreement is terminated by Purchaser or the Company pursuant to Section 8.1(d), then the Company shall promptly (and in any event within two Business Days) after such termination pay, or cause to be paid, to Purchaser an amount equal to $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) (the “Company Termination Fee”), by wire transfer of immediately available funds (and, following such payment, no additional amounts shall be payable under Section 8.3(b)(i)). (iii) If this Agreement is terminated by Purchaser pursuant to Section 8.1(f), then the Company shall promptly (and in any event within three Business Days) after such termination pay, or cause to be paid, to Purchaser an amount equal to $5,000,000 in cash (the “Change of Recommendation Termination Fee”), by wire transfer of immediately available funds. (iv) If, within 12 months following termination of this Agreement by Purchaser or the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”), by wire transfer of immediately available funds. For purposes of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%.”

Company Payments. (i) The Company shall, at or In the event that (A) following the execution and delivery of this Agreement and prior to the earlier termination of this Agreement pursuant to occur Section 8.1(c) or 8.1(d), a Competing Acquisition Transaction shall have been publicly announced, (B) this Agreement is validly terminated pursuant to Section 8.1(c) or Section 8.1(d), (C) at the time of the termination of this Agreement pursuant to Section 8.1(c) or Section 8.1(d), neither Parent nor Merger Sub has breached any of its material obligations under or in connection with this Agreement in any material respect, and (AD) the date that is three Business Days within 365 calendar days following the termination of this Agreement pursuant to Section 8.1 (other than 8.1(c) or Section 8.1(d), either any termination pursuant to Section 8.1(g)) and (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for an amount not to exceed $1,250,000 in cash, by wire transfer of immediately available funds, for Purchaser’s documented expenses incurred in connection with this Agreement and the transactions contemplated hereby (collectively, the “Expense Reimbursement”). (ii) If this Agreement Competing Acquisition Transaction is terminated by Purchaser consummated or the Company pursuant to Section 8.1(denters into a definitive agreement providing for any Competing Acquisition Transaction (which is subsequently consummated, whether or not within the preceding 365 calendar day period), then the Company shall promptly (and in any event within two Business Days) after such termination pay, or cause pay to be paid, to Purchaser Parent an amount in cash equal to $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) 10,850,000 (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within two (and, following such payment, no additional amounts 2) Business Days after the consummation of a Competing Acquisition Transaction. Any amount previously paid by the Company pursuant to Section 8.3(b)(iv) or Section 8.3(b)(v) shall be deducted from the Termination Fee otherwise payable under pursuant to this Section 8.3(b)(i)). (iiiii) If In the event that this Agreement is validly terminated by Purchaser pursuant to Section 8.1(f), then the Company shall promptly pay to Parent the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within two (and in any 2) Business Days after the Company receives a written demand for payment from Parent. (iii) In the event within three Business Days) after such termination paythat this Agreement is validly terminated pursuant to Section 8.1(h), or cause the Company shall pay to be paid, to Purchaser an amount equal to $5,000,000 in cash (Parent the “Change of Recommendation Company Termination Fee”), by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent, as a condition to the effectiveness of such termination. (iv) If, within 12 months following termination of In the event this Agreement by Purchaser or the Company is validly terminated pursuant to Section 8.1(d8.1(c) or the Company shall pay to Parent an amount in cash equal to up to $2,000,000 of the reasonable and documented out-of-pocket fees and expenses actually incurred and paid by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than Parent and Merger Sub in connection with the conversion negotiation of this Agreement, the performance by Parent and Merger Sub of their respective obligations hereunder and the consummation of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”)Merger, by wire transfer of immediately available funds. For purposes funds to an account or accounts designated in writing by Parent, within two (2) Business Days after the Company receives a written demand for payment from Parent; provided, however, that the cash amounts otherwise payable pursuant to this Section 8.3(b)(iv) shall not be payable by the Company in the event that Parent has breached its material obligations under this Agreement and such breach shall have been the cause of, or resulted in, either (i) the failure to satisfy the conditions to the obligations of the terminating party to consummate the Merger set forth in Article VIII prior to the Termination Date, or (ii) the failure of the Effective Time to have occurred prior to the Termination Date. (v) In the event this Agreement is validly terminated pursuant to Section 8.1(d) the Company shall pay to Parent an amount in cash equal to up to $2,000,000 of the reasonable and documented out-of-pocket fees and expenses actually incurred and paid by Parent and Merger Sub in connection with the negotiation of this Agreement, the performance by Parent and Merger Sub of their respective obligations hereunder and the consummation of the Merger, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within two (2) Business Days after the Company receives a written demand for payment from Parent. (vi) The Company acknowledges that the agreements contained in this Section 8.3(b)(ii)8.3 are an integral part of this Agreement, all references and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to “10%” promptly pay the amount due pursuant to this Section 8.3, and in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.3 or any portion of such fee, the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate as reported in the definition Money Section of “Acquisition Transaction” shall be deemed the Wall Street Journal (or comparable publication if the Wall Street Journal is not in publication) on the date such payment was required to be references to “20%made through the date of payment.”

Company Payments. (i) The Company shallIf (A) this Agreement is validly terminated pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(e); (B) at the time of such termination, the conditions set forth in Sections 7.1(b) and Section 7.1(c) have been satisfied or are capable of being satisfied and the conditions set forth in Section 7.3(a) and Section 7.3(b) would be satisfied if the date of such termination was the Closing Date; (C) following the execution and delivery of this Agreement and prior to the earlier termination of this Agreement pursuant to occur of Section 8.1(c), Section 8.1(d) or Section 8.1(e), an Acquisition Proposal for an Acquisition Transaction has been publicly announced or disclosed and not withdrawn or otherwise abandoned; and (AD) the date that is three Business Days within one year following the termination of this Agreement pursuant to Section 8.1 (other than any termination pursuant 8.1(c), Section 8.1(d) or Section 8.1(e), as applicable, either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction, then the Company will concurrently with the consummation of such Acquisition Transaction pay to Section 8.1(g)) and (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for Parent an amount not equal to exceed $1,250,000 in cash, 49,200,000 (the "Company Termination Fee") by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), for Purchaser’s documented expenses incurred all references to "15%" in connection with this Agreement and the transactions contemplated hereby (collectively, the “Expense Reimbursement”)definition of "Acquisition Transaction" will be deemed to be references to "50%." (ii) If this Agreement is validly terminated by Purchaser or the Company pursuant to Section 8.1(d8.1(f), then the Company shall must promptly (and in any event within two Business Days) after following such termination pay, or cause pay to be paid, to Purchaser an amount equal to $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) (Parent the “Company Termination Fee”), Fee by wire transfer of immediately available funds (and, following such payment, no additional amounts shall be payable under Section 8.3(b)(i))to an account or accounts designated in writing by Parent. (iii) If this Agreement is validly terminated by Purchaser pursuant to Section 8.1(f8.1(h), then the Company shall promptly (and in any event within three Business Days) after must prior to or concurrently with such termination pay, or cause pay to be paid, to Purchaser an amount equal to $5,000,000 in cash (Parent the “Change of Recommendation Company Termination Fee”), Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iv) If, within 12 months following termination of this Agreement by Purchaser or the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”), by wire transfer of immediately available funds. For purposes of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%.”

Company Payments. (i) The Company shall, at or prior to In the earlier to occur of (A) the date event that is three Business Days following the termination of this Agreement pursuant to Section 8.1 (other than any termination pursuant to Section 8.1(g)) and (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for an amount not to exceed $1,250,000 in cash, by wire transfer of immediately available funds, for Purchaser’s documented expenses incurred in connection with this Agreement and the transactions contemplated hereby (collectively, the “Expense Reimbursement”). (ii) If this Agreement is terminated (A) by Purchaser or the Company pursuant to Section 8.1(d9.1(d) or (B) by Parent pursuant to Section 9.1(g) or Section 9.1(h), then in either case, the Company shall promptly (and in any event within two Business Days) after such termination pay, or cause pay to be paid, to Purchaser an amount equal to $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) (Parent the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within two (and, following 2) Business Days after such payment, no additional amounts shall be payable under Section 8.3(b)(i))termination. (iiiii) If In the event that (A) a bona fide written offer or proposal (other than an offer or proposal by Parent or Merger Sub or in connection with the transactions contemplated hereby) to engage in an Acquisition Transaction (provided that for purposes of this Section 9.3(b)(ii), all percentages included in the definition of Acquisition Transaction shall be increased to 50%) shall have been made after the date hereof and prior to the Company Shareholders Meeting, and not withdrawn as of the Company Shareholders Meeting, (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by Purchaser the Company pursuant to Section 8.1(f)9.1(c) (provided that the Rollover Shares unanimously voted in favor of the transactions contemplated hereby) and (C) within 12 months after the termination of this Agreement, the Company consummates the transactions contemplated by such same Acquisition Transaction; then the Company shall promptly (and in any event within three Business Days) after such termination pay, or cause pay to be paid, to Purchaser an amount equal to $5,000,000 in cash (Parent the “Change of Recommendation Company Termination Fee”), by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent, within two (2) Business Days following the consummation of the transactions contemplated by such same Acquisition Transaction. (iviii) IfThe 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, within 12 months following termination whether or not the Company Termination Fee may be payable under more than one provision of this Agreement by Purchaser at the same or at different times and the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion occurrence of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”), by wire transfer of immediately available funds. For purposes of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%different events.”

Company Payments. (i) The Company shallIf (A) this Agreement is validly terminated pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(e); (B) at the time of such termination, the conditions set forth in Sections 7.1(b) and Section 7.1(c) have been satisfied or are capable of being satisfied and the conditions set forth in Section 7.3(a) and Section 7.3(b) would be satisfied if the date of such termination was the Closing Date; (C) following the execution and delivery of this Agreement and prior to the earlier termination of this Agreement pursuant to occur of Section 8.1(c), Section 8.1(d) or Section 8.1(e), an Acquisition Proposal for an Acquisition Transaction has been publicly announced or disclosed and not withdrawn or otherwise abandoned; and (AD) the date that is three Business Days within one year following the termination of this Agreement pursuant to Section 8.1 (other than any termination pursuant 8.1(c), Section 8.1(d) or Section 8.1(e), as applicable, either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction, then the Company will concurrently with the consummation of such Acquisition Transaction pay to Section 8.1(g)) and (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for Parent an amount not equal to exceed $1,250,000 in cash, 45,300,000 (the “Company Termination Fee”) by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), for Purchaser’s documented expenses incurred all references to “15%” in connection with this Agreement and the transactions contemplated hereby (collectively, the definition of “Expense ReimbursementAcquisition Transaction” will be deemed to be references to “50%.”). (ii) If this Agreement is validly terminated by Purchaser or the Company pursuant to Section 8.1(d8.1(f), then the Company shall must promptly (and in any event within two Business Days) after following such termination pay, or cause pay to be paid, to Purchaser an amount equal to $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) (Parent the “Company Termination Fee”), Fee by wire transfer of immediately available funds (and, following such payment, no additional amounts shall be payable under Section 8.3(b)(i))to an account or accounts designated in writing by Parent. (iii) If this Agreement is validly terminated by Purchaser pursuant to Section 8.1(f8.1(h), then the Company shall promptly (and in any event within three Business Days) after must prior to or concurrently with such termination pay, or cause pay to be paid, to Purchaser an amount equal to $5,000,000 in cash (Parent the “Change of Recommendation Company Termination Fee”), Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iv) If, within 12 months following termination of this Agreement by Purchaser or the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”), by wire transfer of immediately available funds. For purposes of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%.”

Company Payments. (i) The Company shallIn the event that (A) this Agreement is validly terminated pursuant to Section 8.1(c) or Section 8.1(d), at or (B) following the execution and delivery of this Agreement and prior to the earlier termination of this Agreement pursuant to occur of Section 8.1(c) or Section 8.1(d), a Competing Acquisition Transaction shall have been publicly announced and not withdrawn or otherwise abandoned, and (AC) the date that is three Business Days within one year following the termination of this Agreement pursuant to Section 8.1 (other than any termination pursuant to 8.1(c) or Section 8.1(g8.1(d)) and , either the Competing Acquisition Transaction referenced in the immediately preceding clause (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for an amount not to exceed $1,250,000 in cash, by wire transfer of immediately available funds, for Purchaser’s documented expenses incurred in connection with this Agreement and the transactions contemplated hereby (collectively, the “Expense Reimbursement”). (ii) If this Agreement is terminated by Purchaser consummated or the Company pursuant to Section 8.1(d)enters into a definitive agreement providing for the Competing Acquisition Transaction referenced in the immediately preceding clause (B) and, whether or not during such one-year period, such Competing Acquisition Transaction is subsequently consummated, then the Company shall promptly pay to Newco the Company Termination Fee (and in any event within two Business Days) after such termination pay, or cause to be paid, to Purchaser an amount equal to $1,250,000 in cash, less any amount cash amounts previously paid to Purchaser pursuant to Section 8.3(b)(i) (the “Company Termination Fee”8.3(b)(iv)), by wire transfer of immediately available funds (andto an account or accounts designated in writing by Newco, following concurrently with the consummation of such payment, no additional amounts shall be payable under Section 8.3(b)(i))Competing Acquisition Transaction. (iiiii) If In the event that this Agreement is validly terminated by Purchaser pursuant to Section 8.1(f), then the Company shall promptly pay to Newco the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Newco, within two (and 2) Business Days following the occurrence of such termination. (iii) In the event that this Agreement is validly terminated pursuant to Section 8.1(h), the Company shall pay to Newco the Company Termination Fee, by wire transfer of immediately available funds to an account or accounts designated in any writing by Newco, as a condition to the effectiveness of such termination. (iv) In the event within three Business Days) after such termination paythat this Agreement is validly terminated by Newco pursuant to Section 8.1(d), or cause the Company shall pay to be paid, to Purchaser Newco an amount in cash equal to the costs and expenses incurred by Newco and Merger Sub in connection with the negotiation of this Agreement (or arising out of this Agreement and the transactions contemplated hereby), up to a maximum amount of One Million Dollars ($5,000,000 in cash (the “Change of Recommendation Termination Fee”1,000,000), by wire transfer of immediately available funds. (iv) Iffunds to an account or accounts designated in writing by Newco, within 12 months two (2) Business Days following termination the occurrence of this Agreement by Purchaser or the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”), by wire transfer of immediately available funds. For purposes of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%such termination.”

Company Payments. (i) The Company shallIf (A) this Agreement is validly terminated pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(e); (B) at the time of such termination, the conditions set forth in Sections 7.1(b) and Section 7.1(c) have been satisfied or are capable of being satisfied prior to the earlier to occur of (AOutside Date and the conditions set forth in Section 7.3(a) and Section 7.3(b) would be satisfied if the date that is three Business Days of such termination was the Closing Date; (C) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(e), an Acquisition Proposal for an Acquisition Transaction has been publicly announced or shall have been made known to the Company Board and not withdrawn or otherwise abandoned; and (D) within one year following the termination of this Agreement pursuant to Section 8.1 8.1(c), Section 8.1(d) or Section 8.1(e), as applicable, either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction, then the Company will concurrently with or promptly (other than and in any termination event within two Business Days) after the earlier of the consummation of such Acquisition Transaction and execution of such definitive agreement pay, or cause to be paid, to Parent an amount equal to $17,400,000 (the “Company Termination Fee”), less the amount of any Expense Reimbursement previously paid pursuant to Section 8.1(g8.3(b)(iv)) and (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for an amount not to exceed $1,250,000 in cash, by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), for Purchaser’s documented expenses incurred all references to “15%” in connection with this Agreement and the transactions contemplated hereby (collectively, the definition of “Expense ReimbursementAcquisition Transaction” will be deemed to be references to “50%.”). (ii) If this Agreement is validly terminated pursuant to Section 8.1(f), then the Company must promptly (and in any event within two Business Days) following such termination pay, or cause to be paid, to Parent the Company Termination 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 pursuant to Section 8.1(h), then the Company must prior to or concurrently with such termination pay, or cause to be paid, to Parent the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent; provided, that if such Company Termination Fee is payable in connection with a termination of this Agreement on or prior to the Cut-off Date by the Company pursuant to Section 8.1(h) with respect to the Company entering into an Alternative Acquisition Agreement with a Person or group that is an Excluded Party at the time of such termination, then the Company Termination Fee shall be $7,400,000. (iv) If this Agreement is validly terminated by Purchaser (A) either Parent or the Company pursuant to Section 8.1(c) (if the Requisite Stockholder Approval has not been obtained or meeting not held by the time of such termination) or (B) either Parent or the Company pursuant to Section 8.1(d), then the Company shall promptly reimburse Parent for its out-of-pocket expenses (including all fees and in any event within two Business Daysexpenses of the Financing Sources, counsel, accountants, investment banks, advisors and consultants of Parent and Merger Sub) after such termination pay, or cause up to be paid, to Purchaser an amount equal to aggregate of $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) 5,000,000 (the “Company Termination FeeExpense Reimbursement”), by wire transfer of immediately available funds (and, on the second Business Day following the date of such payment, no additional amounts shall be payable under Section 8.3(b)(i))termination of this Agreement. (iiiv) If this Agreement is validly terminated by Purchaser Parent pursuant to Section 8.1(f8.1(e), then the Company shall promptly (and in any event within three Business Days) after such termination payshall, or cause upon the election of Parent, pay the Expense Reimbursement to be paid, to Purchaser an amount equal to $5,000,000 in cash (the “Change of Recommendation Termination Fee”), Parent by wire transfer of immediately available fundsfunds on the second Business Day following the date of such election. (iv) If, within 12 months following termination of this Agreement by Purchaser or the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”), by wire transfer of immediately available funds. For purposes of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%.”

Company Payments. (i) The Company shallshall pay to Cloudtech in immediately available funds, within thirty (30) business days thereafter, an amount equal to its actual expenses incurred at the time of such termination (the “Termination Fee”) if this Agreement is terminated by Cloudtech pursuant to Section 7.1(1). (ii) The Company shall pay to Cloudtech in immediately available funds, concurrent with the termination by the Company of this Agreement pursuant to Section 7.1(e), an amount equal to the Termination Fee. (iii) The Company shall pay to Cloudtech in immediately available funds, within thirty (30) business days after the occurrence of the events stipulated in paragraphs (A) or (B) below, as the case may be, an amount equal to the Termination Fee, if this Agreement is terminated by Cloudtech pursuant to Section 7.1(b) or Section 7.1(d) and any of the following shall occur: (A) if following the date hereof and prior to the termination of this Agreement, a third party has announced an Acquisition Proposal and has not publicly definitively withdrawn such Acquisition Proposal at least five (5) days prior to the earlier to occur of the End Date or the Stockholders’ Meeting, as applicable, and within 12 months following the termination of this Agreement any Company Acquisition (Aas defined below) is consummated; or (B) if following the date that is three Business Days hereof and prior to the termination of this Agreement, a third party has announced an Acquisition Proposal and has not publicly definitively withdrawn such Acquisition Proposal at least five (5) days prior to the earlier to occur of the End Date or the Stockholders’ Meeting, as applicable, and within 12 months following the termination of this Agreement the Company enters into a letter of intent or similar document or any Contract providing for any Company Acquisition. (iv) The Company hereby acknowledges and agrees that the agreements set forth in this Section 7.3(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Cloudtech would not enter into this Agreement. Accordingly, if the Company fails to pay in a timely manner the amounts due pursuant to this Section 7.3(b)7.1(b) and, in order to obtain such payment, Cloudtech makes a claim that results in a judgment against the Company for the amounts set forth in this Section 7.3(b), the Company shall pay to Cloudtech 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 7.3(b) at the prime rate in effect on the date such payment was required to be made. Payment of the fees described in this Section 7.3(b) shall not be in lieu of damages incurred in the event of any intentional or willful breach of, or any intentional misrepresentation made in, this Agreement. (v) Notwithstanding anything to the contrary set forth in this Agreement, each of the parties hereto hereby expressly acknowledges and hereby agrees that, with respect to any termination of this Agreement pursuant to Section 8.1 7.1 (other than a termination based upon the willful or intentional breach of, or any intentional misrepresentation made in, this Agreement) under circumstances in which the Termination Fee is payable pursuant to this Section 7.3(b), payment of the Termination Fee shall constitute liquidated damages with respect to any claim for damages or any other claim which Cloudtech would otherwise be entitled to assert against the Company or its assets, or against any Employees or stockholders of the Company, with respect to any such termination of this Agreement, and shall constitute the sole and exclusive remedy with respect to any such termination of this Agreement. The parties hereto expressly acknowledge and agree that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any such termination of this Agreement pursuant to Section 8.1(g7.1 (other than a termination based upon the willful or intentional breach of, or any intentional misrepresentation made in, this Agreement) under circumstances in which the Termination Fee is payable pursuant to this Section 7.3(b), the right to such payment: (A) constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination this Agreement, and (B) shall be in full and complete satisfaction of any and all damages arising as a result of any such termination of this Agreement. Except for nonpayment of the ClosingTermination Fee pursuant to this Section 7.3(b), reimburse Purchaser the parties agree that, upon any termination of this Agreement pursuant to Section 7.1 (other than a termination based upon the willful or cause Purchaser intentional breach of, or any intentional misrepresentation made in, this Agreement) under circumstances in which the Termination Fee is payable pursuant to this Section 7.3(b), in no event shall Cloudtech be reimbursed) entitled to seek or to obtain any recovery or judgment against the Company or any of their respective assets, or against any of their respective directors, officers, employees or stockholders for an amount not any such termination of this Agreement, and in no event shall Cloudtech be entitled to exceed $1,250,000 in cashseek or obtain any other damages of any kind, by wire transfer of immediately available fundsincluding consequential, special, indirect or punitive damages, for Purchaser’s documented expenses incurred in connection any such termination of this Agreement. Notwithstanding the foregoing, payment of the Termination Fee pursuant to this Section 7.3(b) shall not constitute liquidated damages with respect to any claim for damages or any other claim which Cloudtech would be entitled to assert against the Company or its assets, or against any Employees or stockholders of the Company, with respect to any such termination of this Agreement based upon the willful or intentional breach or intentional misrepresentation of any representations, warranties or covenants of the Company in this Agreement, and shall not constitute the sole and exclusive remedy with respect to any such termination of this Agreement based upon the willful or intentional breach or misrepresentation of any of the representations, warranties or covenants of the Company in this Agreement. (vi) For the purposes of this Agreement, “Company Acquisition” shall mean any of the following transactions (other than the transactions contemplated hereby by this Agreement): (collectivelyA) a merger, the “Expense Reimbursement”). (ii) If this Agreement is terminated by Purchaser consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to Section 8.1(d), then which the stockholders of the Company shall promptly immediately preceding such transaction hold less than 60% of the aggregate equity interests in the surviving or resulting entity of such transaction or any direct or indirect parent thereof, (and in any event within two Business DaysB) after such termination pay, a sale or cause to be paid, to Purchaser an amount equal to $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) (the “Company Termination Fee”), other disposition by wire transfer of immediately available funds (and, following such payment, no additional amounts shall be payable under Section 8.3(b)(i)). (iii) If this Agreement is terminated by Purchaser pursuant to Section 8.1(f), then the Company shall promptly (and of assets representing in any event within three Business Days) after such termination pay, or cause to be paid, to Purchaser an amount equal to $5,000,000 in cash (excess of 40% of the “Change of Recommendation Termination Fee”), by wire transfer of immediately available funds. (iv) If, within 12 months following termination of this Agreement by Purchaser or the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion aggregate fair market value of the Company’s Convertible Notes) business immediately prior to such sale or (BC) the Company enters into acquisition by any person or group (including by way of a definitive agreement providing for tender offer or an Acquisition Transactionexchange offer or issuance by the Company), then the Company shall promptly (and directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in any event within three Business Days) after the earlier to occur excess of 40% of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (voting power of the “Acquisition Termination Fee”), by wire transfer then outstanding shares of immediately available funds. For purposes capital stock of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%Company.”

Company Payments. (i) The Company shallIf (A) this Agreement is validly terminated pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(e); (B) at the time of such termination, the conditions set forth in Sections 7.1(b) and Section 7.1(c) have been satisfied or are capable of being satisfied and the conditions set forth in Section 7.3(a) and Section 7.3(b) would be satisfied if the date of such termination was the Closing Date; (C) following the execution and delivery of this Agreement and prior to the earlier termination of this Agreement pursuant to occur of Section 8.1(c), Section 8.1(d) or Section 8.1(e), an Acquisition Proposal for an Acquisition Transaction has been publicly announced or disclosed and not withdrawn or otherwise abandoned; and (AD) the date that is three Business Days within one year following the termination of this Agreement pursuant to Section 8.1 (other than any termination pursuant 8.1(c), Section 8.1(d) or Section 8.1(e), as applicable, either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction, then the Company will concurrently with the consummation of such Acquisition Transaction pay to Section 8.1(g)) and (B) the Closing, reimburse Purchaser (or cause Purchaser to be reimbursed) for Parent an amount not equal to exceed $1,250,000 in cash, 116,700,000 (the “Company Termination Fee”) by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), for Purchaser’s documented expenses incurred all references to “15%” in connection with this Agreement and the transactions contemplated hereby (collectively, the definition of “Expense ReimbursementAcquisition Transaction” will be deemed to be references to “50%.”). (ii) If this Agreement is validly terminated by Purchaser or the Company pursuant to Section 8.1(d8.1(f), then the Company shall must promptly (and in any event within two Business Days) after following such termination pay, or cause pay to be paid, to Purchaser an amount equal to $1,250,000 in cash, less any amount previously paid to Purchaser pursuant to Section 8.3(b)(i) (Parent the “Company Termination Fee”), Fee by wire transfer of immediately available funds (and, following such payment, no additional amounts shall be payable under Section 8.3(b)(i))to an account or accounts designated in writing by Parent. (iii) If this Agreement is validly terminated by Purchaser pursuant to Section 8.1(f8.1(h), then the Company shall promptly (and in any event within three Business Days) after must prior to or concurrently with such termination pay, or cause pay to be paid, to Purchaser an amount equal to $5,000,000 in cash (Parent the “Change of Recommendation Company Termination Fee”), Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iv) If, within 12 months following termination of this Agreement by Purchaser or the Company pursuant to Section 8.1(d) or by Purchaser pursuant to Section 8.1(e), either (A) an Acquisition Transaction is consummated (other than in connection with the conversion of the Company’s Convertible Notes) or (B) the Company enters into a definitive agreement providing for an Acquisition Transaction, then the Company shall promptly (and in any event within three Business Days) after the earlier to occur of the events described in clauses (A) and (B), pay, or cause to be paid, to Purchaser an amount equal to $2,500,000 in cash (the “Acquisition Termination Fee”), by wire transfer of immediately available funds. For purposes of this Section 8.3(b)(ii), all references to “10%” in the definition of “Acquisition Transaction” shall be deemed to be references to “20%.”