Common use of Company Termination Fee Clause in Contracts

Company Termination Fee. (i) In the event that (A) this Agreement is terminated pursuant to Section 9.1(b), Section 9.1(c) or Section 9.1(g)(i), (B) following the execution of this Agreement and prior to the Termination Date (as the same may be extended) (or with respect to a termination pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following the termination of this Agreement the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract to consummate any Competing Acquisition Transaction and, in the case of (y), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In the event that this Agreement is terminated pursuant to Section 9.1(f), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date of such termination, the Company shall 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. (iv) For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) 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 different events.

Company Termination Fee. If: (i) In (x) prior to the event that termination of this Agreement, any Competing Proposal (Afor purposes of this subsection, substituting 50% for the 20% thresholds set forth in the definition of Competing Proposal) is made directly to the stockholders of the Company or otherwise becomes publicly known, or any person publicly announces an intention (whether or not conditional and whether or not withdrawn) to make a Competing Proposal or communicates a Competing Proposal to the Company (or any officer or director thereof); and (y) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b), Section 9.1(c8.1(b) (Outside Date) or Section 9.1(g)(i), (B) following the execution of this Agreement and prior to the Termination Date (as the same may be extended8.1(d) (Company Stockholder Approval) or with respect to a termination by Parent pursuant to Section 9.1(c), the time at which a vote is taken on the adoption 8.1(e) (Company Breach) or Section 8.1(g) (Breach of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)Section 6.5) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (Cz) within twelve (12) months following the after termination of this Agreement Agreement, the Company or any of its Subsidiaries subsidiaries consummates any Competing Proposal or enters into a letter of intent, agreement in principle, acquisition agreement or other definitive agreement with respect to any Competing Proposal or a transaction in respect of any Competing Proposal that is subsequently consummated; or (ii) (x) consummates any Competing Acquisition Transaction this Agreement is terminated by Parent pursuant to Section 8.1(f) (Change of Recommendation) or (y) enters into a definitive Contract this Agreement is terminated by the Company or Parent pursuant to consummate any Competing Acquisition Transaction other provision of Section 8.1 (other than Section 8.1(j)) and, in at the case of (y), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation time of such Competing Acquisition Transactiontermination, (A) the Company Stockholder Approval shall not have been obtained and (B) Parent would have been permitted to terminate this Agreement pursuant to Section 8.1(f) (Change in Recommendation); or (iii) this Agreement is terminated by the Company pursuant to Section 8.1(i) (Superior Proposal); then, in any such event, the Company shall pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) payable in cash equal to $14,000,000 (the “Company Termination Fee”), by wire transfer of immediately available funds and neither the Company nor any other person shall have any further liability to an account Parent or accounts designated in writing by Parent. (ii) In the event that any other person with respect to this Agreement is terminated pursuant or the transactions contemplated hereby, such payment to be made (x) in the case of Section 9.1(f8.3(a)(i), thenwhen a transaction in respect of such Competing Proposal is consummated; (y) in the case of Section 8.3(a)(ii), immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, the Company shall pay or cause to be paid to Parent no later than two (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (12) Business Day Days after the date termination of such termination, the Company shall pay this Agreement; 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. (ivz) For the avoidance of doubt, in the event this Agreement is terminated by case of Section 8.3(a)(iii), upon the Company for any reason at a time when Parent would have had the right to terminate termination of this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree ; it being understood that in no event shall the Company be required to pay the Company Termination Fee fee referred to in this Section 8.3(a) 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 different events.

Company Termination Fee. (i) In the event that (A) If this Agreement is terminated (A) by the Company pursuant to Section 9.1(b), 8.01(e) or (B) by Parent pursuant to Section 9.1(c8.01(c) or Section 9.1(g)(i8.01(f), (B) following the execution of this Agreement and prior to the Termination Date (as the same may be extended) (or with respect to a termination pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following the termination of this Agreement the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract to consummate any Competing Acquisition Transaction and, in the case of (y), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall pay to Parent Parent, as liquidated damages and not as a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In the event that this Agreement is terminated pursuant to Section 9.1(f), then, immediately prior to or concurrently with, penalty and as a condition to the effectiveness ofsole and exclusive remedy of AIG, such termination, Parent and Merger Sub against the Company shall pay and its Subsidiaries and any of their respective Affiliates, stockholders or cause Representatives for any loss or damage suffered as a result of the failure of the Merger to be paid to Parent (or its designee) consummated, the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In funds. If the event that this Agreement is terminated Company Termination Fee shall be payable pursuant to Section 9.1(hclause (A) or Section 9.1(iof the preceding sentence, the Company Termination Fee shall be paid on the date of such termination and if the Company Termination Fee shall be payable pursuant to clause (B) then within one of the preceding sentence, the Company Termination Fee shall be paid no later than two (12) Business Day Days after the date of such termination. (ii) If this Agreement is terminated by either Parent or the Company pursuant to Section 8.01(d) or Section 8.01(g) or by Parent pursuant to Section 8.01(h) and (A) at any time after the date hereof and prior to the Company Stockholders Meeting, the termination of the Agreement pursuant to Section 8.01(g) or the breach giving rise to Parent’s right to terminate under Section 8.01(h), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Board of Directors or the stockholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Stockholders Meeting, the termination of this Agreement pursuant to Section 8.01(g) or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the earliest of the consummation of such Takeover Proposal or the entry into such definitive agreement with respect thereto, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of AIG, Parent and Merger Sub against the Company and its Subsidiaries and any of their respective Affiliates, stockholders or cause Representatives for any loss or damage suffered as a result of the failure of the Merger to be paid to Parent consummated, the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iv) For funds; provided, that for the avoidance purposes of doubtthis Section 8.02(b)(ii), all references in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right term Takeover Proposal to terminate this Agreement, Parent “15% or more” shall be entitled deemed to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree that in no event shall the Company be required references 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 different events50%.”

Company Termination Fee. (ia) In the event that (A) If this Agreement is terminated by CWS pursuant to Section 9.1(b8.3(a) hereof, then the Company shall pay to CWS as liquidated damages (by wire transfer of immediately available funds), Section 9.1(cwithin two (2) or Section 9.1(g)(iBusiness Days after such termination the sum of: (i) a termination fee of two hundred thousand dollars ($200,000), plus, (Bii) following the execution of this Agreement and CWS's Expenses (as defined in Section 9.1 hereof) actually incurred by CWS on or prior to the Termination Date (as the same may be extended) (or with respect to a termination pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following the termination of this Agreement the Company or any of its Subsidiaries (x(i) consummates any Competing Acquisition Transaction or and (yii) enters into a definitive Contract to consummate any Competing Acquisition Transaction andabove collectively, in the case of (y), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”). (b) If this Agreement is terminated by the Company pursuant to Section 8.4(a) hereof, then the Company shall pay to CWS as liquidated damages (by wire transfer of immediately available funds funds), at or prior to an account or accounts designated in writing by Parentsuch termination the Company Termination Fee. (iic) In the event that If this Agreement is terminated (i) by CWS pursuant to Section 9.1(f8.3(b) hereof, provided that the Requisite Company Vote shall not have been obtained at the Company Stockholders Meeting (including any adjournment or postponement thereof) or (ii) by the Company or CWS pursuant to (x) Section 8.2(a) hereof and provided that the Requisite Company Vote shall not have been obtained at the Company Stockholders Meeting (including any adjournment or postponement thereof) or (y) Section 8.2(c) hereof and, in the case of clauses (i) and (ii) immediately above, (A) prior to such termination (in the case of termination pursuant to Section 8.2(a) or Section 8.3(b)) or the Company Stockholders Meeting (in the case of termination pursuant to Section 8.2(c)), thena Takeover Proposal shall (1) in the case of a termination pursuant to Section 8.2(a) or Section 8.2(c), immediately prior have been publicly disclosed and not withdrawn or (2) in the case of a termination pursuant to Section 8.3(b), have been publicly disclosed or concurrently withotherwise made or communicated to the Company or the Company Board, and as a condition to not withdrawn, and (B) within twenty-four (24) months following the effectiveness of, date of such terminationtermination of this Agreement, the Company shall pay have entered into a definitive agreement with respect to any Takeover Proposal, or cause to be paid to Parent any Takeover Proposal shall have been consummated (in each case whether or its designee) not such Takeover Proposal is the same as the original Takeover Proposal made, communicated or publicly disclosed), then in any such event the Company Termination Fee shall pay to CWS (by wire transfer of immediately available funds funds), immediately prior to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant and as a condition to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date of consummating such terminationtransaction, the Company shall pay or cause to be paid to Parent the Company Termination Fee by wire transfer (it being understood for all purposes of immediately available funds this Section 8.6(c), all references in the definition of Takeover Proposal to an account 20% shall be deemed to be references to "more than 50%" instead). If a Person (other than CWS) makes a Takeover Proposal that has been publicly disclosed and subsequently withdrawn prior to such termination or accounts designated in writing by Parentthe Company Stockholders Meeting, as applicable, and, within twenty-four (24) months following the date of the termination of this Agreement, such Person or any of its controlled Affiliates makes a Takeover Proposal that is publicly disclosed, such initial Takeover Proposal shall be deemed to have been "not withdrawn" for purposes of clauses (1) and (2) of this paragraph (c). (ivd) Notwithstanding anything to the contrary in this Agreement, if the Company fails, directly or indirectly, to effect the Closing for any or no reason or otherwise breaches this Agreement (whether willfully, intentionally, unintentionally or otherwise) or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise) then CWS’s and NewCo’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the Company and any of its Affiliates, stockholders, officers, directors or Representatives (each a “Company Related Party”) for any breach, loss or damage shall be to terminate this Agreement pursuant to Section 8.3(a) or Section 8.3(b) hereof and receive payment of the Company Termination Fee; and upon payment of such amount by the Company, neither CWS nor NewCo nor any other Person shall have any rights or claims against any of the Company Related Parties under this Agreement or otherwise, whether at law or equity, in contract, in tort or otherwise, and none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree that in no event shall the Company be required or any Company Related Party have any liability under or in respect of this Agreement or the transactions related thereto in excess of an aggregate amount equal 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 different eventsFee.

Company Termination Fee. (i) In the event this Agreement is terminated by the Company pursuant to Section 9.1(c)(ii), the Company shall pay the Company Termination Fee to Parent simultaneously with such termination by wire transfer of same day funds to one or more accounts designated by Parent (or, if such account(s) have not been designated by Parent prior to such termination, promptly, but in any event within two (2) Business Days, following the designation thereof in writing to the Company by Parent). (ii) In the event this Agreement is terminated by Parent pursuant to Section 9.1(d)(ii)(A) (other than as a result of an Intervening Event Change of Recommendation), the Company shall pay the Company Termination Fee to Parent promptly, but in any event within two (2) Business Days after the date of such termination, by wire transfer of same day funds to one or more accounts designated by Parent (or, if such account(s) have not been designated by Parent, promptly, but in any event within two (2) Business Days following the designation thereof in writing to the Company by Parent). (iii) In the event that (A) this Agreement is terminated (1) by either Parent or the Company pursuant to Section 9.1(b)9.1(b)(ii)(B) (and there has been no Intervening Event Change of Recommendation prior to the expiration date of the Offer) and prior to the time of such termination an Acquisition Proposal shall have been publicly announced, commenced or disclosed and shall not have been irrevocably and in good faith publicly withdrawn, or (2) by Parent pursuant to Section 9.1(c9.1(d)(i) and prior to the time of such termination an Acquisition Proposal shall have been made known to the Company Board or Section 9.1(g)(i)publicly announced, commenced or disclosed and shall not have been irrevocably and in good faith withdrawn, and (B) following at any time after the execution of this Agreement and prior to the Termination Date (as the same may be extended) (or with respect to a termination pursuant to Section 9.1(c), the time at which a vote date that is taken on the adoption of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following after the termination of this Agreement (the “Follow-On Period”), the Company consummates an Acquisition Proposal or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract acquisition agreement related to consummate an Acquisition Proposal with a Third Party that is subsequently (1) consummated at any Competing time (for the avoidance of doubt, including consummation at any time after the Follow-On Period) or (2) terminated and, in connection with such termination, the Company receives a fee and/or expense reimbursement (“Acquisition Transaction andProposal Termination Fee”), the Company shall, on the date such Acquisition Proposal is consummated, if at all, or such Acquisition Proposal Termination Fee is received by the Company, if at all, pay (I) in the case of Section 9.4(b)(iii)(B)(1), the Company Termination Fee or (II) in the case of Section 9.4(b)(iii)(B)(2) the lesser of (x) the Company Termination Fee and (y) the Acquisition Proposal Termination Fee, reduced by, in the case of either clause (x) or clause (y), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents all out-of-pocket reasonable and documented fees and expenses incurred by or on the date behalf of the consummation Company in connection with the applicable Acquisition Proposal (including any fees and expenses of such Competing Acquisition Transactionfinancial advisors and legal counsel), the Company shall pay in either case to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), by wire transfer of immediately available same day funds to an account one or more accounts designated in writing by Parent; provided that, for purposes of this Section 9.4(b)(iii), (x) all percentages in the definition of Acquisition Proposal shall be replaced with 50%, (y) the definition of Acquisition Proposal shall exclude any sale or disposition of assets, exclusive license, collaboration or other co-development, co-promotion, co-marketing or similar transaction solely with respect to RECOTHROM or IL-21 to a Third Party (but not both to the same Third Party or its Affiliates), and (z) the definition of Acquisition Proposal shall be expanded to include any sale, disposition, license or transfer, whether direct or indirect, by the Company or any Company Subsidiary to a Third Party of all or a material portion of the Company’s rights with respect to IFN-lambda. (iiiv) In the event that this Agreement is terminated by (i) Parent pursuant to Section 9.1(f9.1(d)(ii)(A) as a result of an Intervening Event Change of Recommendation pursuant to Section 7.5(d)(ii) or (ii) the Company or Parent pursuant to Section 9.1(b)(ii)(B) and prior to the expiration date of the Offer the Company Board has made an Intervening Event Change of Recommendation pursuant to Section 7.5(d)(ii), thenthen the Company shall, immediately prior to or concurrently with, and as a condition to the effectiveness of, within two (2) Business Days of such termination, the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available same day funds to an account one or more accounts designated by Parent a termination fee of $57,400,000 (the “Intervening Event Termination Fee”) (or, if such account(s) have not been designated by Parent, promptly, but in any event within two (2) Business Days following the designation thereof in writing to the Company by Parent). (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date of such termination, the Company shall 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. (ivv) For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree that in no event shall the Company be required obligated to pay pay, or cause to be paid, both the Company Termination Fee and the Intervening Event Termination Fee, or either the Company Termination Fee or the Intervening Event Termination Fee on more than one (1) 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 different events.

Company Termination Fee. (ia) In the event that this Agreement is terminated by Purchasers pursuant to Section 8.01(g) or by Seller pursuant to Section 8.01(h), Seller shall pay to Purchasers the Company Termination Fee. The Company Termination Fee payable pursuant to this Section 8.03(a) shall be paid no later than the second (A2nd) Business Day following termination pursuant to Section 8.01(g) and concurrently with any termination pursuant to Section 8.01(h). (b) In the event that: (i) this Agreement is terminated by Purchasers or Seller pursuant to Section 9.1(b), Section 9.1(c8.01(b) or Section 9.1(g)(i8.01(f), (Bii) following the execution of this Agreement and at or prior to the Termination Outside Date (as in the same may be extended) (or with respect to a case of termination pursuant to Section 9.1(c8.01(b)) or the Seller Stockholder Meeting at which the Required Stockholder Vote shall not have been obtained (in the case of termination pursuant to Section 8.01(f)), a Third Party or Seller shall have publicly disclosed that such Third Party has made, or is considering making, an Acquisition Proposal (and such Acquisition Proposal shall not have been publicly withdrawn prior to the time at which a vote is taken on of the adoption termination of this Agreement Agreement, or in the case of termination pursuant to Section 8.01(b), such Acquisition Proposal shall not have been publicly withdrawn at least ten (10) days prior to the Company Seller Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawnMeeting), and (Ciii) if, within twelve (12) months following after the date of termination of this Agreement Agreement, Seller or the Company or any consummates a transaction within the scope of its Subsidiaries the definition of “Acquisition Transaction” (x) consummates any Competing Acquisition Transaction or provided that for purposes of this clause (y) enters into a definitive Contract to consummate any Competing Acquisition Transaction andiii), each reference in the case definition of (y“Acquisition Transaction” to 15% shall be deemed to be a reference to 50%), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of Seller shall within three (3) Business Days after the consummation of such Competing Acquisition Transactiontransaction, as applicable, cause to be paid to Purchasers, by wire transfer of immediately available funds, an amount equal to the Company shall pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), . (c) All payments under this Section 8.03 shall be made by wire transfer of immediately available funds to an account or accounts designated in writing by ParentPurchasers. (iid) Seller acknowledges that the agreements contained in this Section 8.03 are an integral part of this Agreement. Accordingly, if Seller fails to promptly pay the Company Termination Fee when due, Seller shall pay to Purchasers the Company Termination Fee and all of Purchasers’ costs and expenses (including attorneys’ fees and expenses) in connection with such claim, together with interest on the full amount of the Company Termination Fee from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made. (e) In the event that this Agreement is terminated pursuant to Section 9.1(f), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, the Company Purchasers shall pay or cause to be paid to Parent (or its designee) receive the Company Termination Fee pursuant to this Section 8.03, the receipt of such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by wire transfer Purchasers or any of immediately available funds to an account or accounts designated their Affiliates in writing by Parent. (iii) In the event that connection with this Agreement is terminated pursuant to Section 9.1(h(and the termination hereof), the transactions contemplated by this Agreement (and the abandonment thereof) or Section 9.1(i) then within one (1) Business Day after any matter forming the date of basis for such termination, the Company shall pay or cause to be paid to Parent the Company Termination Fee by wire transfer and neither Purchasers nor any of immediately available funds to an account or accounts designated in writing by Parent. (iv) For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent their Affiliates shall be entitled to receipt bring or maintain any other claim, action or proceeding against Seller or any of its Subsidiaries or any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated of their respective Affiliates arising out of this Agreement, the transactions contemplated by this Agreement at or any matters forming the basis for such timetermination. (v) 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 different events.

Company Termination Fee. (i) In the event that (A) this Agreement is terminated pursuant to Section 9.1(b), Section 9.1(c) or Section 9.1(g)(i), (B) following the execution of this Agreement Prior and prior to the Termination Date (as the same may be extended) (or with respect a condition to a termination pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following the termination of this Agreement the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract pursuant to consummate any Competing Acquisition Transaction and, in the case of (ySection 9.1(g), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall tender to Parent (and pay to Parent if Parent agrees to accept such payment) a fee equal of twenty-one million seven hundred fifty thousand to Four Million, Eight Hundred and Fifty Seven Thousand, Nine Hundred Sixty Five Dollars ($21,750,0004,857,965) in cash (the “Company Termination Fee”), ) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In the event that this Agreement is terminated pursuant to Section 9.1(feither Sections 9.1(i) or 9.1(j), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, within one Business Day after demand by Parent the Company shall pay or cause to be paid to Parent (or its designee) a fee equal to the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date of such termination, the The Company shall pay or cause to be paid to Parent a fee equal to the Company Termination Fee Fee, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, within one Business Day after demand by Parent, in the event that (A) after the execution and delivery of this Agreement, an offer or proposal for a Competing Acquisition Transaction (whether or not conditional) shall be publicly announced, shall become publicly known or shall be otherwise communicated to senior management of the Company or the Company Board (it being understood and agreed that any amendment or other alteration to, or re-proposal of, an offer or proposal for a Competing Acquisition Transaction that was publicly announced or publicly known, or otherwise communicated to senior management of the Company or the Company Board, prior to the execution and delivery of this Agreement shall constitute an offer or proposal for a new Competing Acquisition Transaction for purposes of this Section 9.4(a)(iii)), (B) this Agreement is terminated pursuant to Sections 9.1(b) or Section 9.1(c), and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 9.1(b) or Section 9.1(c), the Company enters into a definitive agreement in respect of any Competing Acquisition Proposal, or recommends or submits a Competing Acquisition Proposal to its stockholders for adoption, or a transaction in respect of any Competing Acquisition Proposal is consummated, which, in each case, need not be the same Competing Acquisition Proposal that was made, disclosed or communicated after the execution and delivery of this Agreement and prior to termination hereof. (iv) For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) 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 different events. (v) Parent shall be entitled to pursue a claim against the Company, either at law or in equity, arising out of this Agreement and the transactions contemplated hereby concurrently with a claim against the Company seeking to obtain the Company Termination Fee, provided, however, that in the event that Parent shall accept or be awarded the Company Termination Fee in full pursuant to this Section 9.4(a), then receipt of such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any other claim, action or proceeding against the Company or any of its Affiliates arising out of this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination. Upon payment of such Company Termination Fee, the Company shall have no further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.

Company Termination Fee. (i) In The Parties agree that if this Agreement is terminated by Parent pursuant to Section 8.1(f) (Company Change of Recommendation) or the event Company pursuant to Section 8.1(h) (Superior Proposal), then the Company will pay to Parent prior to or substantially concurrently with such termination, in the case of a termination by the Company, or within two Business Days thereafter, in the case of a termination by Parent, the Company Termination Fee. (ii) The Parties agree that if (Ax) this Agreement is terminated pursuant to Section 9.1(b), Section 9.1(c8.1(e) (Outside Date) or Section 9.1(g)(i8.1(g) (Company Shareholder Approval) and, at the time of termination pursuant to Section 8.1(e) (Outside Date), the Company has not held the Company Special Meeting, (By) following after the execution date of this Agreement and prior to the Termination Date date of the Company Special Meeting, an Acquisition Proposal has been publicly announced (as which was not subsequently withdrawn) and (z) within 12 months after such termination, (A) the same may be extended) (Company or an affiliate thereof executes a definitive agreement with respect to a termination pursuant an Acquisition Proposal (which is consummated) or (B) the transaction contemplated by an Acquisition Proposal is consummated, then the Company will pay the Company Termination Fee to Parent no later than two Business Days after the date of such consummation of such transaction. For purposes of this Section 9.1(c8.2(b)(ii), the time at which a vote is taken on term “Acquisition Proposal” will have the adoption of meaning assigned to such term in Section 9.5, except that the references to “20%” will be deemed to be references to “50%”. (iii) All payments under this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)Section 8.2(b) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise will be made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following the termination of this Agreement the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract to consummate any Competing Acquisition Transaction and, in the case of (y), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In , or in the event that this Agreement is terminated pursuant to Section 9.1(f)absence of such designation, then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In established for the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date sole benefit of such termination, the Company shall 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. (iv) The Company acknowledges that (A) the agreements contained in this Section 8.2(b) are an integral part of the Transactions and that, without these agreements, Parent and Merger Sub would not have entered into this Agreement and (B) the Company Termination Fee is not a penalty and is in a reasonable amount in order to compensate Parent and Merger Sub for their and their Representatives’ respective time, efforts and resources expended and opportunities forgone in anticipation of the consummation of the Transactions. For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree that in no event shall will the Company be required to pay the Company Termination Fee on more than one occasion. Accordingly, whether or not if the Company fails to pay when due any amount payable under this Section 8.2(b), then, in addition to such amount payable, the Company will (I) reimburse Parent for all reasonable costs and expenses (including reasonable attorney’s fees and reasonable disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 8.2(b) and (II) pay Parent interest on such overdue amount, for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid in full, at a rate per annum equal to 500 basis points over the prime lending rate as published in The Wall Street Journal in effect on the date such payment was originally required to be made. Parent’s right to receive payment from the Company of the Company Termination Fee may shall be payable under more than one provision the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any loss suffered as a result of the termination of this Agreement at under circumstances requiring payment of the same Company Termination Fee pursuant to this Section 8.2, and upon payment of such amount (if entitled under this Section 8.2(b)), none of the Company Related Parties shall have any further liability or at different times obligation relating to or arising out of this Agreement or the Transactions, including the Merger (except that the Company shall remain obligated for, and Parent and its affiliates may be entitled to remedies with respect to, the occurrence sections of different eventsthis Agreement surviving such termination pursuant to Section 8.2). In any circumstance where performance by the Company of its obligations under this Agreement would relieve the Company of its obligation to pay the Company Termination Fee, Parent and Merger Sub may, in their sole discretion (x) seek specific performance pursuant to Section 9.13(c), (y) withdraw any claim for specific performance and require payment of the Company Termination Fee if entitled to payment thereof under this Section 8.2(b), or (z) if Parent and Merger Sub are unable for any reason to obtain specific performance, require payment of the Company Termination Fee if entitled to payment thereof under this Section 8.2(b). (v) In the event that the Company reasonably determines it is required to withhold amounts on account of Israeli Taxes from or in connection with the Company Termination Fee, the Company will notify Parent of such determination as promptly as reasonably practicable after making such determination and provide it with reasonable time (but, in any event, no less than 30 days after providing such notification to Parent) to enter into a paying agent agreement with an Israeli paying agent and deliver the Company Termination Fee, without any Tax withholding, to such paying agent, for the benefit of Parent. Such paying agent will be responsible for making any withholding and remitting of Israeli Taxes to the ITA in accordance with such paying agent agreement. Notwithstanding the foregoing, the Company Termination Fee payable to Parent will be deposited and held by such paying agent for the benefit of Parent for a period of up to 180 days from the date such amount was delivered to the paying agent, during which time no amount will be withheld and during which time the Parent may obtain a Valid Tax Certificate allowing the paying agent to make the payment of the Company Termination Fee with no withholding, or a reduced rate of withholding, on account of Israeli Taxes. To the extent that amounts are so withheld and timely remitted to the ITA, such withheld amounts will be treated for all purposes of this Agreement as having been paid to Parent. In the event that Parent requests such time extension as set forth above, then all references in this Agreement to payment of the Company Termination Fee will be deemed to provide for a deferral of the time upon which payment of the Company Termination Fee is due without such deferral limiting any rights of the Company to terminate this Agreement or in connection with such termination.

Company Termination Fee. In the event that: (a) (i) In This Agreement is terminated by the event that Company pursuant to Section 8.01(f), then the Company shall, concurrently with such termination: (A) pay to Parent by wire transfer of same-day funds all reasonable and documented out-of-pocket expenses of Parent and Sub incurred in connection with this Agreement and the transactions contemplated hereby, not to exceed $10,000,000 (the “Expense Reimbursement”); and (B) issue a promissory note for the amount of the Company Termination Fee, minus any Expense Reimbursement paid, in favor of Parent that shall accrue simple interest at the rate equal to the prime rate of Citibank N.A. in effect on the date such promissory note is issued, which shall mature on the earlier of (1) the date the Superior Proposal accepted by the Company pursuant to Section 5.02(c)(ii)(B) is consummated or (2) the six (6) - month anniversary of the date of termination of this Agreement by the Company pursuant to Section 8.01(f), (b) This Agreement is terminated by Parent pursuant to Section 8.01(e), then the Company shall pay Parent the Company Termination Fee by wire transfer of same-day funds immediately following such termination of this Agreement, or (i) After the date of this Agreement, a Takeover Proposal shall have been announced, commenced, publicly disclosed or made known to the Company Board, (ii) thereafter, this Agreement is terminated by either Parent or the Company pursuant to Section 9.1(b), Section 9.1(c8.01(b)(i) or Section 9.1(g)(i), 8.01(b)(iii) or by Parent pursuant to Section 8.01(c) and (Biii) following at any time after the execution of this Agreement and prior to the Termination Date expiration of the twelfth (as the same may be extended12th) (or with respect to a termination pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following month after the termination of this Agreement Agreement, the Company consummates a Takeover Proposal or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into any letter of intent, agreement in principle, acquisition agreement or other similar Contract related to a definitive Contract Takeover Proposal or to consummate any Competing Acquisition Transaction and, in commercialization rights for the case of Covered Product (ywhether exclusive or non-exclusive), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In the event that this Agreement is terminated pursuant to Section 9.1(f), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date of such termination, the Company shall pay or cause to be paid to Parent the Company Termination Fee by wire transfer of immediately available same-day funds on the date of consummation of the transaction contemplated by any Takeover Proposal referred to an account in clause (iii) above or accounts designated on the date of entry into any letter of intent, agreement in writing by Parentprinciple, acquisition agreement or other similar Contract related commercialization rights for the Covered Product (whether exclusive or non-exclusive). (ivd) For purposes of: (i) Section 8.03(c), the avoidance term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.02(a) except that all references to “15%” therein shall be deemed to be references to “35%”. (ii) This Section 8.03, the “Company Termination Fee” means $75,879,404 (inclusive of doubtParent’s and Sub’s expenses), in cash. (e) Each of the event this Agreement is terminated Company, Parent, and Sub acknowledges that (i) the agreements contained in Section 8.03(a), (b) and (c) are an integral part of the transactions contemplated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, (ii) without these agreements Parent shall be entitled to receipt of any Company Termination Fee that and Sub would have been (or would have subsequently become) payable had Parent terminated not enter into this Agreement at such time. and (viii) The parties hereto acknowledge and hereby agree that in no event shall the Company be required to pay the Company Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that is intended to compensate Parent and Sub in the circumstances in which such Company Termination Fee is payable. Accordingly, if the Company fails to promptly pay any amount due pursuant to Section 8.03(a), (b) or (c) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company or any successor of the Company for the amount set forth in Section 8.03(a), (b) or (c) or any portion thereof, the Company shall pay to Parent costs and expenses (including attorneys’ fees) incurred by the Parent and its Affiliates in connection with such suit, together with interest on more than one occasion, whether such amount or not portion thereof at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment. If the Company Termination Fee may is paid when and as due in accordance with the provisions of Section 8.03(a), in connection with a termination otherwise in accordance with the terms of Section 8.01, such payment shall be payable the sole and exclusive remedy available to Parent and Sub, except in a circumstance where Seller has otherwise intentionally breached its obligations under more than one provision of this Agreement at the same or at different times and the occurrence of different eventsAgreement.

Company Termination Fee. (i) In the event that If (A) this Agreement is validly terminated pursuant to Section 9.1(b), Section 9.1(c8.1(d) or Section 9.1(g)(i8.1(e), ; (B) following the execution and delivery of this Agreement and prior to the Termination Date (as the same may be extended) (or with respect to a termination of this Agreement pursuant to Section 9.1(c)8.1(d) or Section 8.1(e) an Acquisition Proposal or Inquiry for an Acquisition Transaction has been publicly announced or disclosed and not withdrawn or otherwise abandoned or an Acquisition Proposal has otherwise become known, the time at which a vote is taken on the adoption of this Agreement at disclosed or communicated to the Company Stockholder Meeting Board (or an adjournment or postponement a committee thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), ; and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 8.1(d) or Section 8.1(e), either an Acquisition Transaction is consummated or the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract to consummate any Competing agreement providing for the consummation of an Acquisition Transaction and, in the case of (y), any Competing and such Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall substantially concurrently with such consummation pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), Fee 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), 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 9.1(f8.1(f), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, then the Company shall pay must promptly (and in any event within two (2) Business Days) following such termination pay, or cause to be paid paid, to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that If this Agreement is validly terminated pursuant to Section 9.1(h) or Section 9.1(i) 8.1(h), then within one (1) Business Day after the date of such termination, the Company shall pay must substantially concurrently with such termination pay, or cause to be paid 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 (ivA) For such termination occurs prior to the avoidance of doubt, in the event this Agreement is terminated by Cut-Off Date and (B) the Company for any reason has entered into a definitive Alternative Acquisition Agreement to consummate an Acquisition Transaction at a the time when Parent would have had of such termination with an Excluded Party, then the right to terminate this Agreement, Parent shall be entitled to receipt of any “Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such timeFee” shall mean an amount equal to $30,600,000. (v) 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 different events.

Company Termination Fee. (a) The Company will pay to Parent, by wire transfer of cash in immediately available funds, $26,500,000 (the “Company Termination Fee”) if this Agreement is terminated under the following circumstances: (i) In the event that if (A) this Agreement is terminated (1) by either Parent or the Company pursuant to Section 9.1(b), Section 9.1(c) or Section 9.1(g)(i9.1(b)(i), (B2) following by either Parent or the execution of this Agreement Company pursuant to Section 9.1(b)(iii) or (3) by Parent pursuant to Section 9.1(c)(i), and prior to or as of such termination described in the Termination Date foregoing clause (as 1) through (3), (x) an Acquisition Proposal has been publicly announced or disclosed or has otherwise become publicly known or, solely in the same may be extendedcases of clauses (A)(1) and (A)(2), a non-public Acquisition Proposal has been made to the Board of Directors of the Company or with respect (y) any Person has publicly announced, disclosed or communicated an intention to make, whether or not conditionally, an Acquisition Proposal or, solely in the cases of clauses (A)(1) and (A)(2), privately disclosed or communicated to the Board of Directors of the Company an intention to make, whether or not conditionally, an Acquisition Proposal which, in case of either of the foregoing clause (x) or (y), has not been withdrawn (publicly, if public) at the time of such termination, in the case of a termination pursuant to Section 9.1(c)9.1(b)(i) or Section 9.1(c)(i) or, the time at which a vote is taken on the adoption date that is three Business Days before Stockholders Meeting, in the case of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawntermination pursuant to Section 9.1(b)(iii), and (CB) within twelve months after the date of such termination pursuant to Section 9.1(b)(i), Section 9.1(b)(iii) or Section 9.1(c)(i), (121) months following the Board of Directors of the Company recommends that stockholders vote in favor of, or tender their shares into, any Acquisition Proposal (including any Acquisition Proposal made after the date of termination of this Agreement Agreement) or (2) the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract agreement with respect to consummate any Competing Acquisition Transaction and, in the case of Proposal (y), including any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on Proposal made after the date of the termination of this Agreement), or (y) consummates the transaction contemplated by any Acquisition Proposal (including any Acquisition Proposal made after the date of termination of this Agreement), then in case of the foregoing clauses (A) and (B), the Company will pay the Company Termination Fee concurrently with the earliest to occur of such recommendation, such entry into such definitive agreement or such consummation of such Competing transaction; provided that, for purposes of this Section 9.3(a)(i), all references to 15 percent included in the definition of the term “Acquisition TransactionProposal” will be deemed to refer to 50 percent; provided further, that Section 9.3(a)(i)(A) will not apply to any Acquisition Proposal which was made in writing to the Board of Directors of the Company shall pay prior to Parent a fee equal the date of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (this Agreement and for which there has been no subsequent announcement, disclosure or communication renewing such Acquisition Proposal after the “Company Termination Fee”), by wire transfer date of immediately available funds to an account or accounts designated in writing by Parentthis Agreement. (ii) In the event that if this Agreement is terminated by Parent pursuant to Section 9.1(f9.1(c)(ii), thenthen the Company will pay the Company Termination Fee by the second Business Day following the date of such termination; (iii) if this Agreement is terminated by the Company pursuant to Section 9.1(d)(ii), then the Company will pay the Company Termination Fee immediately prior to or concurrently simultaneously with, and as a condition to the effectiveness of, such termination, the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date of such termination, the Company shall 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.; or (iv) For the avoidance of doubt, in the event if this Agreement is terminated by the Company for any reason pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii) and, at a the time when of such termination, Parent would have had the right is entitled to terminate this AgreementAgreement pursuant to Section 9.1(c)(ii), Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree that in no event shall then the Company be required to will pay the Company Termination Fee on more than one occasion, whether or not by the second Business Day following the date of such termination. (b) Each of the Parties acknowledges that any amounts payable by the Company Termination Fee may be payable under more than one provision of to Parent pursuant to this Section 9.3 are not a penalty, but rather, subject to Section 9.2, constitutes liquidated damages in a reasonable amount that will compensate Parent for the efforts and resources expended and opportunities foregone while proposing and negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. (c) The Company acknowledges and agrees that the agreements contained in this Section 9.3 are an integral part of the transaction contemplated by this Agreement and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company fails promptly to pay any amounts due under this Section 9.3 and, in order to obtain such payment, Parent commences any Proceeding that results in a judgment against the Company for such amounts, the Company will pay interest on such amounts from the date payment of such amounts was due to the date of actual payment at the same or at different times prime rate as published by Bloomberg in effect on the date such payment was due, together with the costs and the occurrence of different eventsexpenses (including reasonable legal fees and expenses) incurred by Parent in connection with such Proceeding.

Company Termination Fee. (i) In the event that (A) If this Agreement is terminated by Parent pursuant to Section 9.1(b10.01(c)(i), then the Company shall pay an amount equal to $45,000,000 (the “Company Termination Fee”) to Parent by wire transfer of immediately available funds within two Business Days after such termination. (ii) If this Agreement is terminated by the Company pursuant to Section 9.1(c10.01(d)(i), then the Company shall pay the Company Termination Fee to Parent by wire transfer of immediately available funds substantially concurrently with such termination. (iii) If (A) after the date of this Agreement, a Company Acquisition Proposal shall have been made to the Company, publicly made directly to the stockholders of the Company generally or otherwise publicly disclosed or made known and, in any such case, such Company Acquisition Proposal is not withdrawn (and publicly withdrawn if made publicly) (x) at least three (3) Business Days prior to the Company Stockholder Meeting in the case of termination pursuant to Section 10.01(b)(iii) or (y) prior to a termination pursuant to either Section 10.01(c)(ii) or Section 9.1(g)(i10.01(b)(i), (B) following the execution of thereafter, this Agreement and prior to is terminated by Parent or the Termination Date (as the same may be extended) (or with respect to a termination Company pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (10.01(b)(iii) or an adjournment Section 10.01(b)(i) or postponement thereof)by Parent pursuant to Section 10.01(c)(ii) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following the termination of this Agreement after such termination, a Company Acquisition Proposal is consummated or the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract agreement with respect to consummate any Competing a Company Acquisition Transaction and, in the case Proposal (regardless of (ywhen or whether such transaction is consummated), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In the event that this Agreement is terminated pursuant to Section 9.1(f), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date of such termination, the Company shall pay or cause to be paid to Parent the Company Termination Fee by wire transfer of immediately available funds on the earlier of the date of consummation of, or entry into a definitive agreement with respect to, such Company Acquisition Proposal. For purposes of Section 11.04(b)(iii), all references to an account or accounts designated in writing by Parent. (iv) For the avoidance of doubt, “15%” in the event this Agreement is terminated by the definition of “Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent Acquisition Proposal” shall be entitled deemed to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such timebe references to “50%”. (v) 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 different events.

Company Termination Fee. (i) In the event that If (A) this Agreement is validly terminated pursuant to Section 9.1(b8.1(c) (provided that, at the Termination Date, all of the conditions set forth in Section 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 were the Closing Date), Section 9.1(c8.1(d) or Section 9.1(g)(i8.1(e), ; (B) following the execution and delivery of this Agreement and prior to the Termination Date (as the same may be extended) (or with respect to a termination pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (or Agreement, any Person shall have publicly announced an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed Proposal and not withdrawn or otherwise made public (whether or not subsequently withdrawn), abandoned such Acquisition Proposal; and (C) within twelve (12) months following the such termination of this Agreement Agreement, either an Acquisition Transaction is consummated or the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract to consummate any Competing agreement providing for the consummation of an Acquisition Transaction and, in the case of (y), any Competing and such Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall pay promptly (and in any event within three (3) Business Days) after such consummation pay, or cause to be paid, to Parent (or its designees) a termination fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash 134,650,000 (the “Company Termination Fee”), ) by wire transfer of immediately available funds to an account or accounts designated in writing by ParentParent (or its designees). 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 9.1(f8.1(f), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, then the Company shall pay must promptly (and in any event within three (3) Business Days) following such termination pay, or cause to be paid paid, to Parent (or its designeedesignees) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by ParentParent (or its designees). (iii) In the event that If this Agreement is validly terminated pursuant to Section 9.1(h) or Section 9.1(i) 8.1(h), then within one (1) Business Day after the date of such termination, the Company shall pay must prior to or substantially concurrently with such termination pay, or cause to be paid paid, to Parent (or its designees) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iv) For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such timeits designees). (v) 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 different events.

Company Termination Fee. If this Agreement is (i) In the event that terminated (A) this Agreement is terminated by the Company pursuant to Section 9.1(b7.1(d) (Superior Proposal), or (B) by Parent pursuant to Section 9.1(c7.1(e) (Adverse Recommendation), or (ii) (A) by Parent or the Company pursuant to Section 9.1(g)(i7.1(c) (No Vote), (B) following the execution of this Agreement and prior to the Termination Date (as the same may be extended) (or with respect to a termination pursuant to Section 9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Shareholders Meeting (or an adjournment or postponement thereof)) an offer Acquisition Proposal is publicly announced or proposal for shall become publicly known and not withdrawn (a "Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawnProposal"), and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 7.1(c), the foregoing Competing Acquisition Proposal is consummated or the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract to consummate any the foregoing Competing Acquisition Transaction and, in the case of (y), any Proposal and such Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the Company shall promptly, and in any event within five (5) Business Days after the date of such termination (except as provided in the consummation of such Competing Acquisition Transactionproviso below), pay Parent the Company shall pay Termination Fee (less the amount of Parent Expenses previously paid to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars ($21,750,000) in cash (the “Company Termination Fee”pursuant to Section 7.2(c), if any) by wire transfer of immediately available funds (it being understood and agreed that Parent shall provide the Company with the applicable account information promptly upon request therefor); provided that, in the case of a termination pursuant to an account or accounts designated in writing by Parent. clause (ii) In the event that this Agreement is terminated pursuant to Section 9.1(f), then, immediately prior to or such payment shall be made substantially concurrently with, and as a condition to with the effectiveness of, such termination, the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (iii) In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then within one (1) Business Day after the date consummation of such terminationCompeting Acquisition Proposal; provided, further, that, for the Company purpose of clause (ii), each reference to 20% in the definition of Acquisition Proposal shall 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. (iv) replaced with 50%. For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to terminate this Agreement, Parent shall be entitled to receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree that in no event shall the Company be required obligated to pay pay, or cause to be paid, 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 different events. If the Company becomes obligated to pay the Company Termination Fee pursuant to this Section 7.2(b), Parent and Merger Sub agree that Parent's right to receive the Company Termination Fee from the Company shall be Parent's and Merger Sub's sole and exclusive remedy against the Company and the Company Group and, upon payment of the Company Termination Fee, neither the Company nor any member of the Company Group shall have any liability or obligation to Parent or Merger Sub relating to or arising out of this Agreement or the transactions contemplated hereby.