Common use of Effect of Termination and Abandonment Clause in Contracts

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for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2)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Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition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

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Offer pursuant to this Article IXVI, this Agreement (other than as set forth in Section 10.1Sections 4.3(b), 4.3(c), 6.2, 7.2, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto from any liability for any breach of any liability covenant or damages resulting from agreement contained herein or, to the extent permitted by applicable Law, any fraud or willful or intentional breach of this Agreementany representation or warranty contained herein, in each case, prior to termination. No termination of If this Agreement is terminated as provided herein, each party shall affect use its reasonable commercial efforts to redeliver all documents, work papers and other material (including any copies thereof) of any other party relating to the obligations of transactions contemplated hereby, whether obtained before or after the parties contained in execution hereof, to the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsparty furnishing the same. (b) The In the event that (A) a bona fide Company agrees Takeover Proposal shall have been made known to the Company or any of its subsidiaries and made known to its stockholders generally or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a bona fide Company Takeover Proposal and such Company Takeover Proposal or announced intention shall not have been withdrawn, and thereafter this Agreement is terminated pursuant to (1) Section 6.1(e) as a result of a failure of the Minimum Condition being satisfied, or (2) Section 6.1(f), or (B) this Agreement is terminated by Purchaser pursuant to Section 6.1(c)(iii) or Section 6.1(d) or this Agreement is terminated at such time as it is terminable by Purchaser pursuant to Section 6.1(c)(iii) or Section 6.1(d), then the Company shall promptly, but in no event later than two business days after the date of such termination, pay Parent Purchaser a fee, by wire transfer in immediately available funds, of fee equal to $110 million 2,300,000 (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event funds. If this Agreement is terminated: (i) terminated by Parent or the Company pursuant to Section 9.2(a) or (b6.1(h), if the following shall have occurred: (A) after the date of this Agreement and prior to then the Company Meetingshall, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) concurrently with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement pay to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to Purchaser the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXFee. The Company acknowledges that the agreements contained in this Section 9.5(b6.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub Purchaser would not enter into this Agreement. If ; accordingly, if the Company fails promptly to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required due pursuant to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.this

Effect of Termination and Abandonment. (a) In the event of the termination of this Agreement Plan and the abandonment of the Merger pursuant to this Article IXVII, this Agreement Plan (other than as set forth in Section 10.15.5(b), this Section 7.4 and Article VIII) shall will become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall will relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional and material breach of this AgreementPlan; provided that in no event shall any party hereto be liable for any punitive damages. No termination For purposes of this Agreement Plan, “willful and material breach” shall affect mean a material breach that is a consequence of an act undertaken by the obligations breaching party with the knowledge (actual or constructive) that the taking of the parties contained in the Confidentiality Agreementsuch act would, all or would be reasonably expected to, cause a breach of which obligations shall survive in accordance with their termsthis Plan. (b) The Company agrees to will pay Parent a fee(as consideration for termination of Parent’s rights under this Plan), by wire transfer in of immediately available funds, the sum of $110 million 2,400,000 (the “Termination FeePayment”), and shall pay all of the reasonable Expenses () if this Plan is terminated as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event this Agreement is terminatedfollows: (i1) if this Plan is terminated by Parent pursuant to Section 7.2(c) or (e), then the Company shall pay to Parent the entire Termination Payment on the second business day following such termination; and (2) if this Plan is terminated (A) by Parent pursuant to Section 7.2 (a), (B) by Parent pursuant to Section 7.2(d) or the Company pursuant to Section 9.2(a7.3(c) or (b)C) by Parent pursuant to Section 7.2(b) or the Company pursuant to Section 7.3(b) without a vote of the shareholders of the Company contemplated by this Plan at the Company Meeting having occurred, if and in any such case an Acquisition Proposal with respect to the following Company shall have occurred: been publicly announced or otherwise communicated or made known to the senior management or board of directors of the Company (Aor any person shall have publicly announced, communicated or made publicly known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement Plan and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company on or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (iB), or the date of termination, in the case of clauses (A) above; or (C), then the Company shall pay to Parent (x) an amount equal to 20% of the Termination Payment on the second business day following such termination, and (y) if within 18 months after such termination the Company or any of its subsidiaries enters into a definitive agreement with respect to, or consummates a transaction contemplated by, any Acquisition Proposal, then the Company shall pay the remainder of the Termination Payment on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrarysuch execution or consummation, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance for the purpose of this Agreement. Under no circumstances clause (y), all references in the definition of Acquisition Proposal to “20% or more” shall the Termination Fee be payable more than once pursuant instead refer to this Article IX. “40% or more”. (c) The Company acknowledges and Parent agree that the agreements contained in this Section 9.5(b7.4(b) are an integral part parts of the transactions contemplated by this AgreementPlan, and that, without these agreements, Parent and Merger Sub would that such amounts do not enter into this Agreementconstitute a penalty. If the Company fails to pay both Parent the Termination Fee and Expenses amounts due under such Section 7.4(b) within the time periods specified in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expensessection, the Company shall pay to Parent its reasonable the costs and expenses (including reasonable attorneys’ legal fees and expenses) incurred by Parent in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of any such unpaid amounts at the Termination Fee and/or Expensesprime lending rate prevailing during such period as published in the New York City edition of The Wall Street Journal, calculated on a daily basis from the date such payment was amounts were required to be made paid until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesactual payment.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Transaction pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1Sections 4.4 (Expenses), 7.5(b) (Termination Transfer), 7.5(c) (Exclusive Remedy) and 8.1 through 8.5 and 8.7 through 8.13 (Miscellaneous)) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million If (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14i) of Parent actually incurred relating to the transactions contemplated by Seller or Purchaser terminates this Agreement prior pursuant to termination up Section 7.2 or (ii) Seller terminates this Agreement pursuant to Section 7.3 following an aggregate amount of $20 millionintentional failure in bad faith by Purchaser to comply with its obligations under Section 4.6, and, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or and (bii), if at the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months time of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold conditions set forth in Section 5.1(a), 5.1(b) or 5.2(c) shall not have been satisfied, and at the definition time of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) andsuch termination, prior all other conditions to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) Closing set forth in Sections 5.1 and 5.2 shall have occurred been satisfied or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement waived (other than a confidentiality agreementthe condition set forth in Section 5.1(c), approval or recommendation and other than those conditions that by their terms are to be satisfied at the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing TransactionClosing but which conditions would be satisfied or, in the case of clause Section 5.2(e), would be capable of being satisfied if the Closing Date were the date of such termination, or those conditions that have not been satisfied as a result of a breach by Purchaser), then (i) abovePurchaser shall (A) within three Business Days following receipt of such written notice, pay to Seller the cash amount set forth on Annex E by wire transfer of immediately available funds and (B) deliver to, or as directed by, Seller the assets set forth on Annex E (the “Termination Transfer”) as promptly as reasonably practicable following the expiration of the waiting period (and any extensions thereof) applicable to the transfer of the assets included in the Termination Transfer under the HSR Act and receipt of any required consents, registrations, approvals, permits, clearances or authorizations required to be obtained by Seller, the Company or its Subsidiaries, or any of their respective Affiliates, from any Governmental Entity in connection with the transfer of the assets included in the Termination Transfer; (y) provided, that Seller and Purchaser shall use, and shall cause their respective Subsidiaries to use, their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on the date of termination of their respective parts under this Agreement in the case and applicable Laws to consummate such transfer of clause assets as promptly as practicable; and (ii) above; and promptly following such termination Purchaser will, at the request of Seller, enter into a roaming agreement with the Company containing the terms set forth on Annex F and, if they are unable to reach agreement, shall comply with the terms set forth on Annex F. (zc) two (2) Business Days after termination of Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore accordance with its terms and delivery to the Company of reasonable documentation therefore following the occurrence of the such termination event giving gives rise to the obligation of Purchaser to make the Termination Fee payment obligation described Transfer and enter into a roaming agreement containing the terms set forth on Annex F, all pursuant to Section 7.5(b), and Purchaser shall have paid the cash amount set forth on Annex E, and entered into the roaming agreement, and shall in this good faith be attempting to comply with its obligations under Section 9.5(b). Notwithstanding anything in this Agreement 7.5(b) with respect to the contrarytransfer(s) of assets set forth on Annex E, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent Seller and Merger Sub upon its Subsidiaries and their respective officers, directors and Affiliates against Purchaser and its Subsidiaries and their respective officers, directors and Affiliates for any Damages resulting from, arising out of, or incurred in connection with, this Agreement (including termination thereof) or any transactions ancillary hereto shall be the termination of Termination Transfer and the other matters contemplated and required by Section 7.5(b), and no Person shall have, except as provided herein, any rights or claims against Purchaser and its Subsidiaries and their respective officers, directors and Affiliates under this Agreement, and that all other damages or remedies, whether at law or equity, in equity (including provisional remedies)contract, that might otherwise in tort or otherwise, and none of Purchaser and its Subsidiaries and their respective officers, directors and Affiliates shall have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentany further liability or obligation resulting from, arising out of, or incurred in connection with, this Agreement; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b7.5(c) are an integral part shall apply to tort claims under applicable Law based on fraud or to either party’s rights to seek equitable remedies, including injunctive relief or specific performance (it being understood and agreed that notwithstanding anything to the contrary herein the provisions of Section 8.6 shall apply as to the enforcement of the transactions contemplated by Termination Transfer and other obligations under Section 7.5(b)), with respect to the surviving provisions of and obligations under this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount enforcement of the Termination Fee and/or ExpensesTransfer and other obligations under Section 7.5(b), from including the date implementation and effectuation of the transfers, matters and agreements contemplated thereby and set forth in Annex E and Annex F, and their enforcement, nor to any claims for Damages or otherwise arising out of such payment was required surviving obligations under Section 7.5(b) or any failure to be made until complete all or any portion of the date of payment at Termination Transfer or otherwise effect the prime rate as announced transfers, matters and agreements contemplated by Section 7.5(b) or set forth in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs Annex E and expenses.Annex F.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement in accordance with its terms and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided herein, that (i) no such termination shall relieve or release any party hereto of from any liability or damages resulting arising from (A) any failure to consummate the Merger and the other transactions contemplated hereby if required pursuant to this Agreement, or (B) fraud or willful an intentional and material breach of any provision of this Agreement prior to such termination, and in each case the aggrieved party will be entitled to all rights and remedies available at law or in equity, and (ii) the provisions set forth in Section 6.9, the last sentence of Section 6.6(a), this Section 8.5, Article IX (and the definitions of all defined terms appearing in the foregoing sections) and the Confidentiality Agreement shall survive the termination of this Agreement. For purposes of this Agreement, “intentional and material breach” means a material breach of this Agreement that is a consequence of an act (or failure to act) by the breaching party with the knowledge that the taking of (or the failure to take) such act would, or would be reasonably expected to, cause a breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, In the event of $110 million (the “Termination Fee”), and shall pay all termination of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a8.2(a) and, at the time of such termination, all of the conditions set forth in Section 7.1 (other than Section 7.1(c)) and Section 7.2 (other than Section 7.2(e)) shall have been satisfied or shall be capable of being satisfied at such time but the conditions set forth in Section 7.1(c) or Section 7.2(e) have not been satisfied, Parent shall pay the Company, (bi) concurrently with a termination by Parent or (ii) as promptly as reasonably practicable (and, in any event, within three (3) Business Days) following a termination by the Company, $21,000,000 (the “Break-Up Fee”), if by wire transfer of immediately available funds to an account designated by the following shall have occurred:Company. (Ac) after In the date event of termination of this Agreement and prior to by either Parent or the Company Meetingpursuant to Section 8.2(b) if such Order is related to Gaming Laws, Parent shall pay the Company, (i) concurrently with a Takeover Proposal termination by Parent or (substituting 35% for ii) as promptly as reasonably practicable (and in any event, within three (3) Business Days) following a termination by the 15% threshold set forth in Company, the definition Break-Up Fee, by wire transfer of “Competing Transaction” for purposes immediately available funds to an account designated by the Company. (d) In the event of termination of this Agreement for (i) any reason other than by Parent in accordance with Section 9.5(b)(i)(A)) was made 8.4, the parties shall instruct the Escrow Agent to promptly release and pay the balance of the Section 6.2 Escrow Fund to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by Parent in accordance with Section 8.4, the parties shall instruct the Escrow Agent to promptly release and pay the balance of the Section 6.2 Escrow Fund to Parent. For the avoidance of doubt, payment of the Section 6.2 Escrow Fund to the Company in accordance with clause (Ai) of this Section 8.5(d) shall be in addition to any Break-Up Fee otherwise payable to the Company pursuant to Section 9.2(b8.5(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under or Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.5(c); or. (iiie) Any Break-Up Fee payable by Parent pursuant to Section 9.4(a8.5(b) or Section 8.5(c). The Termination Fee , as applicable, and/or any amount released to the Company from the Section 6.2 Escrow Fund pursuant to Section 8.5(d)(i) shall be paid by the Company no later than: as liquidated damages (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than and not as a confidentiality agreementpenalty), approval or recommendation to it being agreed among the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause Parties that (i) above; the actual damages to the Company in such events are impractical to ascertain and the amount of the Break-Up Fee and the Section 6.2 Escrow Fund are reasonable estimates thereof in the circumstances in which they are payable and (yii) on upon payment of the date Break-Up Fee and any amount to be released to the Company from the Section 6.2 Escrow Fund pursuant to Section 8.5(d)(i), none of termination Parent, Merger Sub or any of their respective Representatives shall have any further liability or obligation relating to or arising out of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part any of the transactions contemplated by this Agreement, and that, without these agreements, hereby (or the abandonment or termination thereof) or any matters forming the basis for such termination. In no event shall Parent and Merger Sub would not enter into this Agreement. If the Company fails be obligated to pay both the Termination Break-Up Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesmore than one occasion.

Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 10.5(b) below, in the event of termination of this Agreement and the abandonment of the Merger and the other Transactions pursuant to this Article IXARTICLE X, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinand notwithstanding anything in this Agreement to the contrary, (i) no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any fraud or willful or intentional breach Willful Breach of this Agreement and (ii) the provisions set forth in this Section 10.5 and ARTICLE XI (other than Section 11.12 thereof) shall survive the termination of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in In the event that this Agreement is terminated: (i) (x)(1) by Parent Remainco or the Company RMT Partner pursuant to (A) Section 10.2(a) under circumstances under which this Agreement could have been terminated pursuant to Section 9.2(a10.3(c) or (B) Section 10.2(b) or (2) by Remainco pursuant Section 10.3(c), (y) prior to such termination, in the case of subclause (x)(1)(B) of this clause (b), if the following a RMT Partner Acquisition Proposal shall have occurred: (A) been publicly announced or otherwise becomes publicly known after the date of this Agreement and prior to the Company RMT Partner Stockholder Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of subclause (x)(1)(A) and (x)(2) of this clause (i) above; (y) on b), a RMT Partner Acquisition Proposal shall have been publicly announced or otherwise becomes publicly known or shall have been communicated to the RMT Partner Board after the date of termination of this Agreement and prior to such termination and, in the case of clause subclause (iix)(1)(A) above; is not withdrawn at least 60 days prior to such termination, and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery on or prior to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree date that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until twelve months after the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be madetermination, after delivery to the Company of reasonable documentation evidencing such costs and expenses.a RMT Partner

Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) and (c) below, in the event of termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement pursuant to this Article IXARTICLE VIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, and notwithstanding anything in the foregoing to the contrary, that (i) except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful or intentional any breach of this Agreement. No Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in In the event this Agreement is terminatedthat: (i) a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any Person shall have publicly announced an intention (whether or not conditional) to make a bona fide Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 9.2(a8.2(a) or (b), if the following shall have occurred: (ASection 8.2(c) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination by Parent pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)8.4(b); (ii) this Agreement is terminated by the Company (A) Parent pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a8.4(a); or (iii) this Agreement is terminated by Parent the Company pursuant to Section 9.4(a8.3(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.;

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided herein, in Section 7.02(b) and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) (i) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $110 million 26,500,000 (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of to Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day immediately available funds to an account specified by Parent in the event of any of the following: (A) in the event that (1) an Acquisition Proposal shall have been made to the Company or its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company, (2) thereafter this Agreement is terminated: (i) terminated by either Parent or the Company pursuant to (x) Section 9.2(a7.01(b) for failure of the Merger to be consummated by the End Date and the Company Shareholder Approval has not been obtained or (by) Section 7.01(c)(ii), if the following shall have occurred: and (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B3) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages the Company enters into a definitive agreement with respect to or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentconsummates an Acquisition Proposal; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance for purposes of this Agreement. Under no circumstances Section 7.02(b)(i)(A), the references to “15%” in the definition of “Acquisition Proposal” shall the Termination Fee be payable more than once instead refer to “50%”; or (B) this Agreement is terminated by Parent pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses7.01(f).

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided herein, in Section 7.02(b) and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) (i) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $110 million 32,500,000 (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of to Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day immediately available funds to an account specified by Parent in the event of any of the following: (A) in the event that (1) an Acquisition Proposal shall have been made to the Company or its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company, (2) thereafter this Agreement is terminated: (i) terminated by either Parent or the Company pursuant to (x) Section 9.2(a7.01(b) for failure of the Merger to be consummated by the End Date and the Stockholder Approval has not been obtained or (by) Section 7.01(c)(ii), if the following shall have occurred: and (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B3) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages the Company enters into a definitive agreement with respect to or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentconsummates an Acquisition Proposal; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance for purposes of this Agreement. Under no circumstances Section 7.02(b)(i)(A), the references to “15%” in the definition of “Acquisition Proposal” shall the Termination Fee be payable more than once instead refer to “50%”; or (B) this Agreement is terminated by Parent pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses7.01(f).

Effect of Termination and Abandonment. (a) In the event of termination of this the Agreement and the abandonment of the Merger pursuant to this Article IX, written notice thereof shall as promptly as practicable be given to the other parties to this Agreement and this Agreement shall terminate and the transactions contemplated hereby shall be abandoned, without further action by any of the parties hereto. If this Agreement is terminated as provided herein: (other than as set forth in Section 10.1a) there shall become void and of no effect with be no liability or obligation on the part of any party hereto (American General Corporation, the American General Corporation Subsidiaries, the Company or of any of its the Company Subsidiaries or their respective officers and directors, officers, employees, agents, legal and financial advisors or other representatives); provided, howeverall obligations of the parties shall terminate, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect for (i) the obligations of the parties contained pursuant to this Section 9.5, (ii) the provisions of Sections 4.20, 5.20, 7.5, 10.4, 10.5, 10.6 and 10.10, (iii) the obligations of the parties set forth in the Confidentiality Agreement referred to in Section 7.1 hereof (provided, however, that if this Agreement is terminated by the Company pursuant to Section 9.4(c), American General Corporation shall no longer be bound by any standstill provisions of the Confidentiality Agreement), all and except that (iv) a party who is in material breach of which obligations its representations, warranties, covenants or agreements set forth in this Agreement shall survive be liable for damages occasioned by such breach, including without limitation any expenses incurred by the other party in accordance connection with their terms. this Agreement and the transactions contemplated hereby, and (b) The Company agrees to pay Parent a feeall filings, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), applications and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating other submissions made pursuant to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 millionshall, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meetingextent practicable, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly be withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required agency or person to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be which made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In the event of termination Subject to (b), (c), (d) and (e) of this section, if this Agreement and the abandonment of the Merger is terminated pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the all obligations of the parties contained in the Confidentiality Agreement, all of which obligations hereto shall survive in accordance with their termsterminate. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), and shall pay If all of the reasonable Expenses (as defined in Section 10.14) conditions of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: (i) Sections 7.1 and 7.3 have been waived by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosedsatisfied, and was not publicly withdrawn in good faith and without qualification, prior Parent fails or refuses to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of consummate the transactions contemplated by this Agreement, then the Company may elect as Company's sole remedy to receive a break-up fee from Parent in the amount of $1,000,000. The receipt of the break-up fee shall be the Company's sole remedy. (c) If all of the conditions of Section 7.1 and that7.2 have been waived by the Company or satisfied, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails or refuses to pay both consummate the Termination Fee and Expenses in accordance with transactions contemplated by this Section 9.5(b) andAgreement, in order then Parent may elect, as Parent's sole remedy, to obtain such payment, Parent commences receive a suit that results in a judgment against break-up fee from the Company for in the Termination Fee and/or Expensesamount of $1,000,000. The receipt of the break-up fee shall be the Parent's sole remedy. (i) If the parties mutually agree to terminate this Agreement pursuant to Section 8.1 or if (ii) Parent is not in breach in any material respect of its obligations under this Agreement and (x) Parent elects to terminate this Agreement pursuant to Section 8.3, or (y) the Company elects to terminate this Agreement pursuant to Section 8.2, then each party shall pay to Parent be responsible for its reasonable own costs and expenses (including attorneys' fees) associated with this Agreement, and no party shall have any further obligations with respect to this Agreement. (e) If this Agreement is terminated as permitted in Section 8.2 or 8.3 and such termination results from the willful (i) failure to perform a material covenant of this Agreement or (ii) breach by either party hereto of any material representation or warranty contained in this Agreement, then such party shall be fully liable for any and all damage, loss, liability and expense (including, without limitation, reasonable attorneys’ ' fees and expenses) incurred in connection with or suffered by the other party as a result of such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesfailure or breach.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, no party to this Agreement (nor any of their respective officers, directors or agents) shall have any liability or further obligation to any other than party hereunder except as set forth in subsections (b) and (c) below and in Section 10.1) shall become void 9.01, and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such that termination shall not relieve a party from liability for any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Nortel and the Company agrees agree that the Company shall pay to pay Parent a fee, by wire transfer in immediately available funds, Nortel the sum of $110 million 60,000,000 (the “"Termination Fee”), and shall pay all of the reasonable Expenses (") solely as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event this Agreement is terminatedfollows: (i) by Parent or if (x) the Company shall terminate this Agreement pursuant to Section 9.2(a8.01(c) due to the failure of the parties to consummate the Merger by the relevant date (unless such failure results primarily from the action or inaction of Nortel or from Nortel's or Sub's inability to obtain consent or approval of, or make any filing or registration with, any Governmental Authority) and (b), if the following shall have occurred: (Ay) at any time after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company at or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of before such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover there shall exist an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination within 12 months of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated; (ii) if (x) the Company or Nortel shall terminate this Agreement pursuant to Section 8.01(d)(iv) due to the failure of the Company's stockholders to approve and that all other damages adopt this Agreement and (y) at any time after the date of this Agreement and at or remedies, at law before the Company Meeting there shall exist an Acquisition Proposal which has been publicly announced or in equity the existence of which is a matter of public knowledge and (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon z) within 12 months of the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated; (iii) if Nortel shall terminate this Agreement pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii) following a willful breach of any of the representations, covenants or agreements contained herein and (y) at any time after the date of this Agreement and at or before such termination there shall exist an Acquisition Proposal and (z) within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated; (iv) if Nortel shall terminate this Agreement pursuant to Section 8.01(e)(i); or (v) if the Company shall terminate this Agreement pursuant to Section 8.01(e)(ii). (c) The Termination Fee required to be paid pursuant to subsection (b)(i), (b)(ii) or (b)(iii) above shall be payable by the Company to Nortel not later than two Business Days after the date the Company enters into a definitive agreement with respect to, or the date of consummation of, an Acquisition Proposal, whichever is earlier. Under The Termination Fee required to be paid pursuant to subsection (b)(iv) above shall be payable by the Company to Nortel not later than two Business Days after the termination referred to therein. The Termination Fee required to be paid pursuant to subsection (b)(v) shall be payable as set forth in clause (z) of Section 8.01(e)(ii). Notwithstanding the foregoing, (i) in no circumstances event shall the more than one Termination Fee be payable more than once pursuant payable, (ii) Nortel may elect, by notice to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of Company, to defer the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount payment of the Termination Fee and/or Expenses, from time to time for a period or periods of up to an aggregate of twelve months after the date such payment was required fee would otherwise be payable and (iii) the Termination Fee shall cease to be payable immediately following any exercise by Nortel of the Option under the Option Agreement. All payments under this Section 8.02 shall be made until the date by wire transfer of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required immediately available funds to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesan account designated by Nortel.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided herein, in Section 7.02(b) and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) (i) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $110 million 8,500,000 (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of to Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day immediately available funds to an account specified by Parent in the event of any of the following: (A) in the event that (1) a bona fide Acquisition Proposal shall have been made to the Company or its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company; (2) thereafter this Agreement is terminated: (i) terminated by either Parent or the Company pursuant to (x) Section 9.2(a7.01(b) for failure of the Merger to be consummated by the End Date or (by) Section 7.01(c)(ii), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meetingand, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such terminationcase, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its AffiliatesShareholder Approval has not been obtained; and and (B3) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages the Company enters into a definitive agreement with respect to or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentconsummates an Acquisition Proposal; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance for purposes of this Agreement. Under no circumstances Section 7.02(b)(i)(A), the references to “15%” in the definition of “Acquisition Proposal” shall the Termination Fee be payable more than once instead refer to “50%”; or (B) this Agreement is terminated by Parent pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses7.01(f).

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Offer and the Merger pursuant to this Article IXARTICLE VIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, provided that (i) except as otherwise provided hereinin Sections 8.5(g), 9.5(c) and 9.5(d), no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful or intentional material breach of this Agreement. No Agreement (it being understood that any such liability or damages for which the Company may become liable shall be calculated net of the amount of the Termination Fee, if previously paid by the Company) and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that this Agreement is terminated by the Company agrees pursuant to Section 8.3(a) or by Parent pursuant to Section 8.4(a), then the Company shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $110 million 272,500,000 (the “Termination Fee”)) as directed in writing by Parent, and shall pay all at the time of termination in the reasonable Expenses case of a termination pursuant to Section 8.3(a) or promptly (as defined but in Section 10.14) any event within two business days following termination of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the case of a termination pursuant to Section 8.4(a). (c) In the event that this Agreement is terminatedterminated by: (i) by Parent or the Company pursuant to Section 9.2(a) or (b8.2(a), if the following shall have occurred: and (Ax) at any time after the date of this Agreement June 7, 2007 and prior to the Company Meeting, a Takeover termination an Acquisition Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company has been publicly announced or publicly disclosed, made known and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (By) within twelve (12) nine months of after such termination the Company or any of its Subsidiaries shall have entered enters into an Alternative Acquisition Agreement to consummatea definitive agreement with respect to, or consummates, any Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall have pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee, and (ii) in the event that an Acquisition Proposal is otherwise consummated, or on the date of such consummation, the Company shall have approved or recommended to pay the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B))Termination Fee; (ii) by Parent or the Company (A) pursuant to Section 9.2(b8.2(b) and(or, after this Agreement becomes terminable for the reasons set forth in Section 8.2(b), the Company terminates this Agreement for another reason), and (x) after June 7, 2007 and prior to the Expiration Date referred to in Section 8.2(b), an Acquisition Proposal has been publicly announced or publicly made known and not withdrawn and (y) within nine months after such termination the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company Meetingshall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee less the amount of any event giving rise Parent Expenses previously paid to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) Parent pursuant to Section 9.3(a)8.5(d) by the Company, and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of, and as a condition to, such consummation, the Company shall pay the Termination Fee less the amount of any Parent Expenses previously paid to Parent pursuant to Section 8.5(d) by the Company; or (iii) by Parent pursuant to Section 9.4(a8.4(b). The , and (x) prior to the breach giving rise to the right of termination, an Acquisition Proposal has been publicly announced or publicly made known and not withdrawn and (y) within nine months after such termination the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, an Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of such consummation, the Company shall pay the Termination Fee. For purposes of this Section 8.5(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(b), except that all references to 15% therein shall be paid deemed to be references to “more than 50%”. (d) In the event that this Agreement is terminated by Parent, on the one hand, or the Company, on the other hand, pursuant to Section 8.2(b) under circumstances in which the Termination Fee is not then payable pursuant to this Section 8.5, then the Company shall pay promptly (but in any event within two business days) following receipt of an invoice therefor all of Parent’s actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent and its affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (the “Parent Expenses”) as directed by Parent in writing, which amount shall not be greater than $40,000,000; provided, however, that the existence of circumstances that could require the Termination Fee to become subsequently payable by the Company no later than: (xpursuant to Section 8.5(c)(ii) two (2shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 8.5(d); provided further, that the payment by the Company of Parent Expenses pursuant to this Section 8.5(d) Business Days after shall not relieve the first Company of any subsequent obligation to occur of pay the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation Termination Fee pursuant to Section 8.5(c) except to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or extent indicated in Section 8.5(c)(ii). (e) In the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date event of termination of this Agreement in by (i) the case of clause Company pursuant to Section 8.3(c), Section 8.3(d) or Section 8.3(e) or (ii) above; Parent pursuant to Section 8.4(c), Parent shall pay the Company an amount, by wire transfer of immediately available funds, equal to, without duplication, $272,500,000 (the “Parent Fee”) as promptly as possible (but in any event within two business days) following such termination. (f) Any amount that becomes payable pursuant to Section 8.5(b), 8.5(c), 8.5(d) or 8.5(e) shall be paid by wire transfer of immediately available funds to an account or accounts designated by the party entitled to receive such payment. The parties hereto agree and understand that in no event shall the Company or Parent be required to pay the Termination Fee or the Parent Fee, respectively, on more than one occasion. (zg) two Notwithstanding anything to the contrary in this Agreement, (2i) Business Days after in the circumstances in which Parent becomes obligated to pay the Parent Fee, the Company’s termination of this Agreement in pursuant to Section 8.2(a), Section 8.3(c), Section 8.3(d), Section 8.3(e) or Section 8.4(c), as the case may be, and receipt of clause (iiipayment of the Parent Fee pursuant to Section 8.5(e) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery or the guarantee thereof pursuant to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, Amended Guarantees shall be the sole and exclusive remedy of Parent the Company and its Subsidiaries against Parent, Merger Sub or the Guarantors for any loss or damage suffered as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement by Parent or Merger Sub and the failure of the Acceptance Date to occur or the Merger to be consummated, and upon payment of the termination Parent Fee in accordance with Section 8.5(e), none of Parent, Merger Sub or the Guarantors shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, and that (ii) in no event, whether or not this Agreement shall have been terminated, shall the Company be entitled to monetary damages in excess of $272,500,000 in the aggregate, inclusive of the Parent Fee, if applicable, for all other losses and damages or remedies, at law arising from or in equity (including provisional remedies), that might otherwise have been available to connection with breaches of this Agreement by Parent and or Merger Sub are waived or otherwise relating to or arising out of this Agreement or the transactions contemplated by Parent and Merger Sub upon the acceptance of such paymentthis Agreement; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit relieve Parent from seeking specific performance or Merger Sub of this Agreement. Under no circumstances shall liability to pay for Shares accepted for payment in the Termination Fee be payable more than once pursuant to this Article IX. Offer. (h) The Company acknowledges parties acknowledge that the agreements contained in this Section 9.5(b) 8.5 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub the parties would not enter into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with this any amount due pursuant to Section 9.5(b8.5(b), Section 8.5(c) or Section 8.5(d) or Parent fails to promptly pay any amount due pursuant to Section 8.5(e), and, in order to obtain such payment, Parent or Merger Sub, on the one hand, or the Company, on the other hand, commences a suit that results in a judgment against the Company for the Termination Fee and/or Expensesamount set forth in Section 8.5(b), Section 8.5(c) or Section 8.5(d) or any portion thereof or a judgment against Parent for the amount set forth in Section 8.5(e) or any portion thereof the Company shall pay to Parent or Merger Sub, on the one hand, or Parent shall pay to the Company, on the other hand, its reasonable costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment amount or portion thereof at the prime rate as announced in the Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery to made through the Company date of reasonable documentation evidencing such costs and expensespayment.

Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.2(b), 8.2(c), 8.2(d) and 8.2(e) , in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXin accordance with Section 8.1, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided herein, that (x) no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud willful and material breach of its obligations set forth in this Agreement and (y) the provisions set forth in this Section 8.2, Section 6.16(d) and the second and third sentences of Section 9.1 shall survive the termination of this Agreement. For purposes of this Agreement, "willful and material breach" means a material breach of this Agreement that is a consequence of an act undertaken or willful a failure to take an act by the breaching party with the knowledge that the taking of such act or intentional the failure to take such act would cause a material breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in In the event that this Agreement is terminated: (i) by Parent or (I) either the Company or Parent pursuant to Section 9.2(a8.1(c) (Requisite Company Vote Not Obtained) or (b)II) Parent pursuant to Section 8.1(e) (Company Breach) as a result of a material breach by the Company of the covenants or agreements set forth in this Agreement and, if at the following time of such termination, the Requisite Company Vote shall not have occurred:been obtained; and (A) after a bona fide Acquisition Proposal shall have been made publicly to the date Company or any of this Agreement and its Subsidiaries or otherwise become publicly known, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal that has not been withdrawn without qualification prior to, in the case of clause (I), the earlier of (x) five days prior to the Company Meeting, a Takeover Proposal Shareholders Meeting (substituting 35% for the 15% threshold set forth as such meeting may have been adjourned or postponed in the definition of “Competing Transaction” for purposes of accordance with this Section 9.5(b)(i)(A)Agreement) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2y) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, ; and (B) within twelve (12) 12 months of after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatea definitive agreement providing for, or shall have consummatedconsummated or, in the case of an Acquisition Proposal that is a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatetender offer, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for's shareholders, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” an Acquisition Proposal; provided, that, for purposes of this Section 9.5(b)(i)(B8.2(b)(i)), the references to "15%" in the definition of "Acquisition Proposal" shall be deemed to be references to "50%" and, as to clause (i) of such definition, any such Acquisition Proposal shall result in a change in control of at least 50% of the stock or assets of the Company; (ii) by the Company (A) Parent pursuant to Section 9.2(b8.1(g) and, prior to the date of the (Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(aRecommendation Matters); or (iii) by Parent the Company pursuant to Section 9.4(a8.1(h) (Superior Proposal). The Termination Fee shall be paid by the Company no later than: ; then, (x1) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause Section 8.2(b)(i), within two Business Days after consummation of such Acquisition Proposal, (i2) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) Section 8.2(b)(ii), within two (2) Business Days after termination of this Agreement and (3) in the case of clause (iii) above. The Expenses shall be paid Section 8.2(b)(iii), concurrently with or prior to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and the Company shall pay a termination fee of $400,000,000 (the "Company Termination Fee") (net of any Expense Reimbursement previously paid) to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. In the event that all other damages this Agreement is terminated by either the Company or remedies, at law or in equity Parent pursuant to Section 8.1(c) (including provisional remediesRequisite Company Vote Not Obtained), that might otherwise have been the Company shall pay to Parent, by wire transfer of immediately available funds to Parent an account designated in writing by Parent, all of the reasonable and Merger Sub are waived documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent and Merger Sub upon in connection with this Agreement and the acceptance other transactions contemplated by this Agreement, in an amount not to exceed $25,000,000 (the "Expense Reimbursement"), within two Business Days after the date following such termination. To the extent any portion of such payment; provided, however, that prior to payment of such Termination Fee and Expenses the Expense Reimbursement is paid by the Company to Parent, nothing herein such amount paid shall prohibit Parent be deducted from seeking specific performance the amount of this Agreement. Under no circumstances shall the any Company Termination Fee be payable more than once pursuant to this Article IX. The Company owed or payable. (c) Each party acknowledges that the agreements contained in this Section 9.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub no party would not enter have entered into this Agreement. If ; accordingly, if the Company fails to timely pay both the Parent any amount due pursuant to Section 8.2(b) (any such amount due, a "Termination Fee and Expenses in accordance with this Section 9.5(b) Payment"), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the applicable Termination Fee and/or ExpensesPayment, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment thereon at the prime rate as announced published in the The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by Parent) in effect on the date such payment Termination Payment was required to be madepaid from such date through the date of full payment thereof; provided, after delivery that if such suit does not result in a judgment against the Company, Parent shall pay to the Company of reasonable documentation evidencing such its costs and expensesexpenses (including attorneys' fees) in connection with such suit. (d) Each of the parties acknowledges and agrees that the Company Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Company Termination Fee is due and payable and which do not involve fraud or willful and material breach, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary in this Agreement, (x) in no event shall more than one Company Termination Fee be payable under this Agreement and (y) the parties agree that the payment of the Company Termination Fee shall be the sole and exclusive remedy available to Parent and Merger Sub with respect to this Agreement in the event any such payment becomes due and payable and is paid, and, upon payment of the Company Termination Fee, the Company (and the Company's Affiliates and its and their respective directors, officers, employees, stockholders and Representatives) shall have no further liability to Parent and Merger Sub under this Agreement; provided, that in the event that a Company Termination Fee becomes due and is paid pursuant to this Section 8.2, Parent shall have the right to refund the Company Termination Fee in its entirety within five Business Days after the payment of the Company Termination Fee by the Company, and if Parent does so refund the Company Termination Fee in its entirety to the Company within such five Business Day period, the Company shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of this Agreement and Parent and Merger Sub shall be entitled to all remedies available as contemplated by

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Transaction pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1Sections 4.4 (Expenses), 7.5(b) (Termination Transfer), 7.5(c) (Exclusive Remedy) and 8.1 through 8.5 and 8.7 through 8.13 (Miscellaneous)) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million If (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14i) of Parent actually incurred relating to the transactions contemplated by Seller or Purchaser terminates this Agreement prior pursuant to termination up Section 7.2 or (ii) Seller terminates this Agreement pursuant to Section 7.3 following an aggregate amount of $20 millionintentional failure in bad faith by Purchaser to comply with its obligations under Section 4.6, and, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or and (bii), if at the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months time of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold conditions set forth in Section 5.1(a), 5.1(b) or 5.2(c) shall not have been satisfied, and at the definition time of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) andsuch termination, prior all other conditions to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) Closing set forth in Sections 5.1 and 5.2 shall have occurred been satisfied or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement waived (other than a confidentiality agreementthe condition set forth in Section 5.1(c), approval or recommendation and other than those conditions that by their terms are to be satisfied at the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing TransactionClosing but which conditions would be satisfied or, in the case of clause Section 5.2(e), would be capable of being satisfied if the Closing Date were the date of such termination, or those conditions that have not been satisfied as a result of a breach by Purchaser), then (i) abovePurchaser shall (A) within three Business Days following receipt of such written notice, pay to Seller the cash amount set forth on Annex E by wire transfer of immediately available funds and (B) deliver to, or as directed by, Seller the assets set forth on Annex E (the “Termination Transfer”) as promptly as reasonably practicable following the expiration of the waiting period (and any extensions thereof) applicable to the transfer of the assets included in the Termination Transfer under the HSR Act and receipt of any required consents, registrations, approvals, permits, clearances or authorizations required to be obtained by Seller, the Company or its Subsidiaries, or any of their respective Affiliates, from any Governmental Entity in connection with the transfer of the assets included in the Termination Transfer; (y) provided, that Seller and Purchaser shall use, and shall cause their respective Subsidiaries to use, their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on the date of termination of their respective parts under this Agreement in the case and applicable Laws to consummate such transfer of clause assets as promptly as practicable; and (ii) above; and promptly following such termination Purchaser will, at the request of Seller, enter into a roaming agreement with the Company containing the terms set forth on Annex F and, if they are unable to reach agreement, shall comply with the terms set forth on Annex F. (zc) two (2) Business Days after termination of Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore accordance with its terms and delivery to the Company of reasonable documentation therefore following the occurrence of the such termination event giving gives rise to the obligation of Purchaser to make the Termination Fee payment obligation described Transfer and enter into a roaming agreement containing the terms set forth on Annex F, all pursuant to Section 7.5(b), and Purchaser shall have paid the cash amount set forth on Annex E, and entered into the roaming agreement, and shall in this good faith be attempting to comply with its obligations under Section 9.5(b). Notwithstanding anything in this Agreement 7.5(b) with respect to the contrarytransfer(s) of assets set forth on Annex E, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent Seller and Merger Sub upon its Subsidiaries and their respective officers, directors and Affiliates against Purchaser and its Subsidiaries and their respective officers, directors and Affiliates for any Damages resulting from, arising out of, or incurred in connection with, this Agreement (including termination thereof) or any transactions ancillary hereto shall be the termination of Termination Transfer and the other matters contemplated and required by Section 7.5(b), and no Person shall have, except as provided herein, any rights or claims against Purchaser and its Subsidiaries and their respective officers, directors and Affiliates under this Agreement, and that all other damages or remedies, whether at law or equity, in equity (including provisional remedies)contract, that might otherwise in tort or otherwise, and none of Purchaser and its Subsidiaries and their respective officers, directors and Affiliates shall have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentany further liability or obligation resulting from, arising out of, or incurred in connection with, this Agreement; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b7.5(c) are an integral part shall apply to tort claims under applicable Law based on fraud or to either party’s rights to seek equitable remedies, including injunctive relief or specific performance (it being understood and agreed that notwithstanding anything to the contrary herein the provisions of Section 8.6 shall apply as to the enforcement of the transactions contemplated by Termination Transfer and other obligations under Section 7.5(b)), with respect to the surviving provisions of and obligations under this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount enforcement of the Termination Fee and/or ExpensesTransfer and other obligations under Section 7.5(b), from including the date implementation and effectuation of the transfers, matters and agreements contemplated thereby and set forth in Annex E and Annex F, and their enforcement, nor to any claims for Damages or otherwise arising out of such payment was required surviving obligations under Section 7.5(b) or any failure to be made until complete all or any portion of the date of payment at Termination Transfer or otherwise effect the prime rate as announced transfers, matters and agreements contemplated by Section 7.5(b) or set forth in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs Annex E and expenses.Annex F.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Investor or the abandonment of the Merger pursuant to this Article IXCompany as provided in Section 8.1, this Agreement (other than as set forth in Section 10.1) shall forthwith become void and have no effect, and none of no effect with no liability Investor, the Company, any of their respective Subsidiaries or obligation on any of the part of any party hereto (officers or directors of any of its directorsthem or any of the other Investor Parties shall have any liability of any nature whatsoever hereunder, officersor in connection with the transactions contemplated hereby, employeesexcept that Sections 6.4, agents, legal 6.13 and financial advisors or other representatives)9.4 and this Section 8.2 shall survive any termination of this Agreement; provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto Investor or the Company of any liability or damages resulting from any fraud or willful or intentional and material breach of this Agreement. No termination of any representation, warranty, covenant or agreement set forth in this Agreement shall affect prior to such termination and in the obligations event of such breach the parties contained hereto shall be entitled to exercise any and all remedies available under law or equity, but only to the extent expressly provided in the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsSection 9.11 hereof. (b) The In the event this Agreement is terminated by Investor pursuant to Section 8.1(f) or by the Company agrees pursuant to Section 8.1(g), the Company shall pay Parent to Investor an amount, as liquidated damages and not as a feepenalty, by wire transfer in immediately available funds, of equal to $110 million 1,000,000 (the “Termination Fee”), and shall pay all of the reasonable Expenses . (as defined in Section 10.14c) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in In the event that this Agreement is terminated: (i) terminated by Parent Investor or the Company pursuant to Section 9.2(a8.1(e) or Section 8.1(c) due to the failure to obtain Requisite Shareholder Approval at the Company Meeting, and (b), if i) an Acquisition Proposal with respect to the following Company shall have occurred: (A) after been publicly announced, disclosed or otherwise communicated to the Company Board prior to the date of this Agreement and specified in Section 8.1(c) or prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth Meeting in the definition case of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any a termination pursuant to Section 9.2(a8.1(c), the date of such termination or and (2ii) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatea definitive agreement with respect to, or the Company shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; andan Acquisition Transaction, then the Company shall pay to Investor an amount equal to the Termination Fee. (Bd) In the event that this Agreement is terminated by Investor pursuant to Section 8.1(b) and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Investor or during the cure period therefor provided in Section 8.1(b) and (ii) within twelve (12) 12 months of such termination termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatea definitive agreement with respect to, or the Company shall have consummated, or an Acquisition Transaction with the party presenting the Acquisition Proposal, then the Company shall have approved or recommended pay to Investor an amount equal to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B));Termination Fee. (iie) In the event that this Agreement is terminated by the Company (A) pursuant to Section 9.2(b) 8.1(c), and, prior at the time of such termination, all of the conditions in Section 7.1 and 7.2 shall have been satisfied or would have been satisfied if the Closing were to occur on the date of termination, then Investor shall pay to the Company an amount equal to the Termination Fee. (f) In the event that this Agreement is terminated by Investor pursuant to Section 8.1(c), and, at the time of such termination, all of the conditions in Section 7.1 and 7.3 shall have been satisfied or would have been satisfied if the Closing were to occur on the date of termination, then the Company shall pay to Investor an amount equal to the Termination Fee. (g) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be made not more than five Business Days after the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the obligation to make such payment, unless the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment is payable as a result of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remediesAgreement by the Company pursuant to Section 8.1(g), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; providedin which case, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee shall be payable more than once pursuant to this Article IX. The concurrently with such termination. (h) Investor and the Company acknowledges acknowledge that the agreements contained in this Section 9.5(b) 8.2 are an integral part of the transactions contemplated by this Agreement, Agreement and that, without these agreements, Parent and Merger Sub neither Investor nor the Company would not enter into this Agreement. If the Company Accordingly, if any party fails promptly to pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 8.2 and, in order to obtain such payment, Parent the other party commences a suit that which results in a judgment against the Company party that failed to promptly pay the amount due pursuant to this Section 8.2, for the Termination Fee and/or Expensesamount set forth in this Section 8.2, the Company party that was the subject of the suit shall pay to Parent the other party its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal of Citibank N.A. in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.

Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.02(b), 8.02(c), 8.02(c) and 8.02(e), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXin accordance with Section 8.01, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates); provided, however, except as otherwise provided hereinthat (x) subject to Sections 8.02(c) and 8.02(e), no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any fraud or willful or intentional breach Willful and Material Breach of its obligations set forth in this Agreement and (y) the provisions set forth in this Section 8.02 and the second and third sentences of Section 9.01 shall survive the termination of this Agreement. No In addition to the foregoing, no termination of this Agreement shall will affect the rights or obligations of any Party pursuant to the parties contained Guarantee, which rights, obligations and agreements set forth in the Confidentiality Agreement, all Guarantee will survive the termination of which obligations shall survive this Agreement in accordance with their respective terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in In the event that this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a8.01(f) or (bChange of Recommendation), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person ifthen, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses Company shall pay or cause to be paid a termination fee of $24,000,000 (the “Company Termination Fee”) to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. (c) Subject to Section 8.02(e), if this Agreement is terminated by the Company pursuant to Section 8.01(e) or Section 8.01(g), or by Parent pursuant to Section 8.01(b) if at such time the Company could have validly terminated this Agreement pursuant to Section 8.01(e) or Section 8.01(g), then within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages Parent shall pay or remedies, at law or cause to be paid a termination fee of $50,000,000 (the “Parent Termination Fee”) to the Company by wire transfer of immediately available funds to an account designated in equity (including provisional remedieswriting by the Company. In the event this Agreement is terminated by the Company pursuant to Section 8.01(h), Parent shall pay to the Company, by wire transfer of immediately available funds, an amount equal to that might otherwise have been available required to Parent reimburse the Company and Merger Sub are waived by Parent its Subsidiaries for all fees and Merger Sub upon expenses incurred in connection with this Agreement and the acceptance transactions contemplated hereby at or prior to the time of such payment; providedtermination, however, that prior up to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall $10,000,000 in the Termination Fee be payable more than once pursuant to this Article IX. The Company aggregate. (d) Each Party acknowledges that the agreements contained in this Section 9.5(b) 8.02 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub no Party would not enter have entered into this Agreement. If ; accordingly, if the Company or Parent fails to timely pay both the Parent or Company any amount due pursuant to Section 8.02(b) or Section 8.02(c), as applicable (any such amount due, a “Termination Fee and Expenses in accordance with this Section 9.5(b) Payment”), and, in order to obtain such payment, Parent the Party owed a Termination Payment commences a suit that results in a judgment against the Company for Party owing the applicable Termination Fee and/or ExpensesPayment, the Company owing Party shall pay to Parent the owed Party its reasonable reasonable, documented and out-of-pocket costs and expenses (including reasonable attorneys’ fees and expensesof outside counsel) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment thereon at the prime rate as announced published in the The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by the owed Party) in effect on the date such payment Termination Payment was required to be madepaid from such date through the date of full payment thereof (any such amounts of costs, after delivery expenses and interest, the “Enforcement Costs”); provided, that in no event shall any Party be required to the Company of reasonable documentation evidencing such costs and expensespay Enforcement Costs in an aggregate amount exceeding $2,000,000.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in this Section 10.18.5 or Sections 5.2(c), 5.4, 6.11, 9.4 and 9.8) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The In the event that this Agreement is terminated pursuant to (i) Section 8.3(a) or Section 8.4(a), (ii) Section 8.4(b) arising out of a breach of a representation or warranty of the Company agrees or an action by the Company or failure to take an action by the Company which results in a breach of a covenant by the Company; or (iv) Section 8.4(c), (d) or (e)[(other than termination by Parent under Section 8.4(e) if the Dissenting Shares of Company Common Stock exceed ten percent (10%) of the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time)]; then the parties acknowledge that Parent will suffer direct and substantial damages, which damages cannot be determined with reasonable certainty. To compensate Parent for such damages, and in addition to any other remedies that Parent, Merger Sub or their affiliates may have with respect to this Agreement, the Company shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $110 million (the “Termination Fee”), 1,200,000 and shall pay all of the reimburse Parent for reasonable Expenses (as defined expenses incurred in Section 10.14) of Parent actually incurred relating to connection with the transactions contemplated by this Agreement (collectively, the "TERMINATION FEE") in immediately available funds prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, . It is specifically agreed that the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement amount to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXSection 8.5(b) represents liquidated damages and is not a penalty. The Company hereby waives any right to set-off or counterclaim against such amount. The Company acknowledges that the agreements agreement contained in this Section 9.5(b8.5(b) are is an integral part of the transactions contemplated by this Agreement, and that, without these agreementssuch agreement, the Company, Parent and Merger Sub would not enter have entered into this Agreement. If ; accordingly, if the Company fails to promptly pay both the Termination Fee and Expenses in accordance with any amount due pursuant to this Section 9.5(b) 8.5(b), and, in order to obtain such payment, Parent commences a suit that which results in a judgment against the Company for the Termination Fee and/or Expensesany amount required to be paid pursuant to this Section 8.5, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses' fees) incurred in connection with such suit, together with interest from the date of termination of this Agreement on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment owed at the prime rate as announced in the Wall Street Journal of Morgan Guaranty Trust Company of New York in effect on the date from time to time xxxxxg such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesperiod plus two percent.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Offer pursuant to this Article IXVI, this Agreement (other than as set forth in Section 10.1Sections 4.3(b), 4.3(c), 6.2, 7.2, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13 and 7.14) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto from any liability for any breach of any liability covenant or damages resulting from agreement contained herein or, to the extent permitted by applicable Law, any fraud or willful or intentional breach of this Agreementany representation or warranty contained herein, in each case, prior to termination. No termination of If this Agreement is terminated as provided herein, each party shall affect use its reasonable commercial efforts to redeliver all documents, work papers and other material (including any copies thereof) of any other party relating to the obligations of transactions contemplated hereby, whether obtained before or after the parties contained in execution hereof, to the Confidentiality Agreement, all of which obligations shall survive in accordance with their termsparty furnishing the same. (b) The In the event that (A) a bona fide Company agrees Takeover Proposal shall have been made known to the Company or any of its subsidiaries and made known to its stockholders generally or shall have been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a bona fide Company Takeover Proposal and such Company Takeover Proposal or announced intention shall not have been withdrawn, and thereafter this Agreement is terminated pursuant to (1) Section 6.1(e) as a result of a failure of the Minimum Condition being satisfied, or (2) Section 6.1(f), or (B) this Agreement is terminated by Purchaser pursuant to Section 6.1(c)(iii) or Section 6.1(d) or this Agreement is terminated at such time as it is terminable by Purchaser pursuant to Section 6.1(c)(iii) or Section 6.1(d), then the Company shall promptly, but in no event later than two business days after the date of such termination, pay Parent Purchaser a fee, by wire transfer in immediately available funds, of fee equal to $110 million 2,300,000 (the “"Termination Fee”"), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event funds. If this Agreement is terminated: (i) terminated by Parent or the Company pursuant to Section 9.2(a) or (b6.1(h), if the following shall have occurred: (A) after the date of this Agreement and prior to then the Company Meetingshall, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) concurrently with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement pay to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to Purchaser the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IXFee. The Company acknowledges that the agreements contained in this Section 9.5(b6.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub Purchaser would not enter into this Agreement. If ; accordingly, if the Company fails promptly to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required due pursuant to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.this

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided herein, in Section 7.02(b) and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (bi) The Company agrees to shall pay Parent a fee, by wire transfer in immediately available funds, termination fee of $110 million 8,500,000 (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of to Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day immediately available funds to an account specified by Parent in the event of any of the following: (A) in the event that (1) a bona fide Acquisition Proposal shall have been made to the Company or its shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company; (2) thereafter this Agreement is terminated: (i) terminated by either Parent or the Company pursuant to (x) Section 9.2(a7.01(b) for failure of the Merger to be consummated by the End Date or (by) Section 7.01(c)(ii), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meetingand, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such terminationcase, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its AffiliatesShareholder Approval has not been obtained; and and (B3) within twelve (12) months of such the termination of this Agreement, the Company enters into a definitive agreement with respect to or any consummates an Acquisition Proposal; provided, that for purposes of its Subsidiaries shall have entered into an Alternative Acquisition Agreement this Section 7.02(b)(i)(A), the references to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the “15% threshold set forth %” in the definition of “Competing TransactionAcquisition Proposal” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant shall instead refer to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred “50%”; or (B) pursuant to Section 9.3(a); or (iii) this Agreement is terminated by Parent pursuant to Section 9.4(a7.01(f). The . (ii) Any Termination Fee required by this Section 7.02 shall be paid by the Company promptly, but in no event later than: (x) than two (2) Business Days after the first date of termination; provided that with respect to occur of clause (A) above, the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation Termination Fee shall be paid immediately prior to the Company’s stockholders of entering into a Takeover definitive agreement with respect to, or consummation of, an Acquisition Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause . (ic) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(bparagraph (b) above are an integral part of the transactions contemplated by this Agreement, and that, that without these agreements, such agreements Parent and Merger Sub would not enter have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay both Parent any amounts due under paragraph (b) above within the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expensestime period specified therein, the Company shall pay to Parent its reasonable all costs and expenses (including reasonable attorneys’ fees and expensesfees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such suitamounts, together with interest on the amount of the Termination Fee and/or Expenses, from the date any such payment was required to be made until the date of payment unpaid amounts at the publicly announced prime rate as announced of interest printed in the The Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.. ARTICLE 8 MISCELLANEOUS 8.01

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesaffiliates); provided, that the provisions set forth in this Section 8.5, Section 6.8 (Public Announcements), Section 8.6 (Expenses), Section 9.1 (Non-Survival of Representations, Warranties, Covenants and Agreements), Section 9.2 (Notices), Section 9.5 (Entire Agreement; Assignment), Section 9.6 (Parties in Interest), Section 9.8 (Governing Law), Section 9.12 (Dispute Resolution), and the Confidentiality Agreement shall survive the termination of this Agreement and abandonment of the Merger pursuant to this Article VIII, and provided, further, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No that termination of this Agreement shall affect the obligations not relieve any party from any liability for any fraud or Willful Breach by such party. For purposes of the parties contained in the Confidentiality this Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: Willful Breach” means (i) by Parent with respect to any breach of a representation or warranty contained in this Agreement, that the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after breaching party had knowledge as of the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company that such representation or publicly disclosed, and warranty was not publicly withdrawn true and correct in good faith all material respects; and without qualification, prior to either (1ii) with respect to any termination pursuant to Section 9.2(a), the date breach of such termination a covenant or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of obligation contained in this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, that the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: breaching party (x) two (2) Business Days after the first to occur committed a material breach of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval such covenant or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) aboveobligation; and (y) on at the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment time of such Termination Fee and Expensesbreach, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges had knowledge that the agreements contained in this Section 9.5(b) are an integral part covenant or obligation was being breached, or upon later acquiring knowledge that such covenant or obligation had been breached, failed to use commercially reasonable efforts to cure such breach, provided that such breach was reasonably capable of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesbeing cured.

Effect of Termination and Abandonment. (a) In Except as provided in paragraph (b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, that no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or and intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to (i) CapitalSource shall pay Parent a termination fee, by wire transfer in immediately available fundsrepresenting liquidated damages, of $110 million 91,000,000 (the “CapitalSource Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case PacWest payable by wire transfer of same day immediately available funds to an account specified by PacWest in the event of any of the following: (1) in the event that (A) an Acquisition Proposal shall have been made to CapitalSource or its stockholders generally or any Person shall have publicly announced an Acquisition Proposal with respect to CapitalSource and (B) thereafter this Agreement is terminated: (i) terminated by Parent or the Company PacWest pursuant to Section 9.2(a7.01(d)(ii) or by either Party pursuant to (b), if x) Section 7.01(b) for failure of the following shall have occurred: (A) after Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of CapitalSource in breach of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2y) with respect to any termination pursuant to Section 9.2(b), the seventh (7th7.01(c)(ii) Business Day prior to the date as a result of the Company Meeting; provided, that, for purposes failure of this Agreement, a Takeover Proposal shall not be deemed the CapitalSource Stockholder Approval to have been “publicly withdrawn” by any Person if, within twelve obtained and (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (BC) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages CapitalSource consummates or remedies, at law or in equity (including provisional remedies), that might otherwise have been available enters into a definitive agreement with respect to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentan Acquisition Proposal; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance for purposes of this Agreement. Under no circumstances Section 7.02(b)(i)(1), all references in the definition of Acquisition Proposal to “15%” shall the Termination Fee be payable more than once instead refer to “50%”; or (2) this Agreement is terminated pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses7.01(e)(ii).

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVIII, this Agreement (other than as set forth in Section 10.19.01) shall become void and of no effect with no liability or further obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million (In the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds in the event this Agreement is terminatedevent: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following that an Acquisition Proposal shall have occurred: (A) been made after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or any Person shall have publicly disclosed, and was announced an intention (whether or not publicly withdrawn in good faith and without qualification, prior conditional) to either (1) make an Acquisition Proposal with respect to any termination the Company and thereafter, this Agreement is terminated (A) by the Company pursuant to Section 9.2(a8.03(a), (B) by the date of such termination Company or (2) with respect to any termination Parent pursuant to Section 9.2(b8.02(b)(ii), the seventh or (7thC) Business Day prior by Parent pursuant to the date of the Company MeetingSection 8.04; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, and within twelve (12) months of after such termination, termination the Company or any of its Subsidiaries shall have entered into an Alternative agreement relating to an Acquisition Agreement to consummate, Proposal or any Acquisition Proposal shall have been consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination then the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummatepromptly, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth but in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any no event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) than two (2) Business Days after the first date of such event, pay the a termination fee representing liquidated damages, of $4,000,000 (the “Termination Fee”) payable by wire transfer of immediately available funds to occur of an account specified by Parent. (c) In the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement), approval or recommendation to the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing Transaction, in the case of clause event that: (i) above; (y) on the date of termination of Company terminates this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b8.03(b) are an integral part as a result of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Parent’s breach of Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expenses.5.03(g); or

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Transaction pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1Sections 4.4 (Expenses), 7.5(b) (Termination Transfer), 7.5(c) (Exclusive Remedy) and 8.1 through 8.5 and 8.7 through 8.13 (Miscellaneous)) shall become void and of no effect with no liability or obligation on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any fraud or willful or intentional breach of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a fee, by wire transfer in immediately available funds, of $110 million If (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14i) of Parent actually incurred relating to the transactions contemplated by Seller or Purchaser terminates this Agreement prior pursuant to termination up Section 7.2 or (ii) Seller terminates this Agreement pursuant to Section 7.3 following an aggregate amount of $20 millionintentional failure in bad faith by Purchaser to comply with its obligations under Section 4.6, and, in each case payable by wire transfer of same day funds in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or and (bii), if at the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months time of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold conditions set forth in Section 5.1(a), 5.1 (b) or 5.2(c) shall not have been satisfied, and at the definition time of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) andsuch termination, prior all other conditions to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) Closing set forth in Sections 5.1 and 5.2 shall have occurred been satisfied or (B) pursuant to Section 9.3(a); or (iii) by Parent pursuant to Section 9.4(a). The Termination Fee shall be paid by the Company no later than: (x) two (2) Business Days after the first to occur of the execution of an Alternative Acquisition Agreement waived (other than a confidentiality agreementthe condition set forth in Section 5.1(c), approval or recommendation and other than those conditions that by their terms are to be satisfied at the Company’s stockholders of a Takeover Proposal, failure to oppose a Takeover Proposal or the consummation of a Competing TransactionClosing but which conditions would be satisfied or, in the case of clause Section 5.2(e), would be capable of being satisfied if the Closing Date were the date of such termination, or those conditions that have not been satisfied as a result of a breach by Purchaser), then (i) abovePurchaser shall (A) within three Business Days following receipt of such written notice, pay to Seller the cash amount set forth on Annex E by wire transfer of immediately available funds and (B) deliver to, or as directed by, Seller the assets set forth on Annex E (the “Termination Transfer”) as promptly as reasonably practicable following the expiration of the waiting period (and any extensions thereof) applicable to the transfer of the assets included in the Termination Transfer under the HSR Act and receipt of any required consents, registrations, approvals, permits, clearances or authorizations required to be obtained by Seller, the Company or its Subsidiaries, or any of their respective Affiliates, from any Governmental Entity in connection with the transfer of the assets included in the Termination Transfer; (y) provided, that Seller and Purchaser shall use, and shall cause their respective Subsidiaries to use, their respective reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on the date of termination of their respective parts under this Agreement in the case and applicable Laws to consummate such transfer of clause assets as promptly as practicable; and (ii) above; and promptly following such termination Purchaser will, at the request of Seller, enter into a roaming agreement with the Company containing the terms set forth on Annex F and, if they are unable to reach agreement, shall comply with the terms set forth on Annex F. (zc) two (2) Business Days after termination of Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore accordance with its terms and delivery to the Company of reasonable documentation therefore following the occurrence of the such termination event giving gives rise to the obligation of Purchaser to make the Termination Fee payment obligation described Transfer and enter into a roaming agreement containing the terms set forth on Annex F, all pursuant to Section 7.5(b), and Purchaser shall have paid the cash amount set forth on Annex E, and entered into the roaming agreement, and shall in this good faith be attempting to comply with its obligations under Section 9.5(b). Notwithstanding anything in this Agreement 7.5(b) with respect to the contrarytransfer(s) of assets set forth on Annex E, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent Seller and Merger Sub upon its Subsidiaries and their respective officers, directors and Affiliates against Purchaser and its Subsidiaries and their respective officers, directors and Affiliates for any Damages resulting from, arising out of, or incurred in connection with, this Agreement (including termination thereof) or any transactions ancillary hereto shall be the termination of Termination Transfer and the other matters contemplated and required by Section 7.5(b), and no Person shall have, except as provided herein, any rights or claims against Purchaser and its Subsidiaries and their respective officers, directors and Affiliates under this Agreement, and that all other damages or remedies, whether at law or equity, in equity (including provisional remedies)contract, that might otherwise in tort or otherwise, and none of Purchaser and its Subsidiaries and their respective officers, directors and Affiliates shall have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such paymentany further liability or obligation resulting from, arising out of, or incurred in connection with, this Agreement; provided, however, that prior to payment of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b7.5(c) are an integral part shall apply to tort claims under applicable Law based on fraud or to either party’s rights to seek equitable remedies, including injunctive relief or specific performance (it being understood and agreed that notwithstanding anything to the contrary herein the provisions of Section 8.6 shall apply as to the enforcement of the transactions contemplated by Termination Transfer and other obligations under Section 7.5(b)), with respect to the surviving provisions of and obligations under this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount enforcement of the Termination Fee and/or ExpensesTransfer and other obligations under Section 7.5(b), from including the date implementation and effectuation of the transfers, matters and agreements contemplated thereby and set forth in Annex E and Annex F, and their enforcement, nor to any claims for Damages or otherwise arising out of such payment was required surviving obligations under Section 7.5(b) or any failure to be made until complete all or any portion of the date of payment at Termination Transfer or otherwise effect the prime rate as announced transfers, matters and agreements contemplated by Section 7.5(b) or set forth in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs Annex E and expenses.Annex F.

Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article IXVII, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or obligation to any Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors representatives or other representativesAffiliates); provided, however, except as otherwise provided herein, that (a) no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any fraud or willful or intentional and material breach of this Agreement. No ; and (b) the provisions set forth in this Section 7.2, Article IX and the Confidentiality Agreement shall survive the termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreement; and provided, all of which obligations shall survive in accordance with their terms. (b) The Company agrees to pay Parent a feefurther, by wire transfer in immediately available funds, of $110 million (the “Termination Fee”), and shall pay all of the reasonable Expenses (as defined in Section 10.14) of Parent actually incurred relating to the transactions contemplated by this Agreement prior to termination up to an aggregate amount of $20 million, in each case payable by wire transfer of same day funds that in the event this Agreement is terminated: (i) by Parent or the Company pursuant to Section 9.2(a) or (b), if the following shall have occurred: (A) after the date of this Agreement and prior to the Company Meeting, a Takeover Proposal (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(A)) was made to the Company or publicly disclosed, and was not publicly withdrawn in good faith and without qualification, prior to either (1) with respect to any termination pursuant to Section 9.2(a), the date of such termination or (2) with respect to any termination pursuant to Section 9.2(b), the seventh (7th) Business Day prior to the date of the Company Meeting; provided, that, for purposes of this Agreement, a Takeover Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, a Competing Transaction made by or on behalf of such Person or any of its Affiliates; and (B) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate, or shall have consummated, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed a pending proposal for, a Competing Transaction (substituting 35% for the 15% threshold set forth in the definition of “Competing Transaction” for purposes of this Section 9.5(b)(i)(B)); (ii) by the Company (A) pursuant to Section 9.2(b) and, prior to the date of the Company Meeting, any event giving rise to Parent’s right of termination under Section 9.4(a) shall have occurred or (B) pursuant to Section 9.3(a); or (iii) terminated by Parent pursuant to Sections 7.1(b), 7.1(d), 7.1(e), 7.1(f) or 7.1(g), for any reason and at the time of such termination any of the conditions set forth in Section 9.4(a). The Termination Fee shall be paid by 6.2(f) have not been satisfied, then the Company no later than: shall indemnify, defend and hold harmless Parent and its Representatives, Subsidiaries, direct and indirect parent companies, shareholders, partners, members, managers, officers, directors and Affiliates (x) two (2) Business Days after collectively, the first to occur of the execution of an Alternative Acquisition Agreement (other than a confidentiality agreement“Parent Indemnitees”), approval and save and hold each of them harmless against, any and all (i) Losses suffered, incurred or recommendation to sustained by, or imposed upon, the CompanyParent Indemnitees in connection with any third party claim as a result of, arising out of or related to, the failure of such conditions set forth in Section 6.2(f) and (ii) documented, reasonable out-of-pocket costs and expenses incurred by Parent Indemnitees in connection with the Transactions (including the reasonable and documented fees and expenses of Parent’s stockholders of a Takeover Proposallegal counsel, failure to oppose a Takeover Proposal or accountants and other third-party advisors and including the consummation of a Competing TransactionMerger Agreement HSR Fee, if paid) provided, in the case of clause (i) above; (y) on the date of termination of this Agreement in the case of clause (ii) above; and (z) two (2) Business Days after termination of this Agreement in the case of clause (iii) above. The Expenses shall be paid to Parent within two (2) Business Days after demand therefore and delivery to the Company of reasonable documentation therefore following the occurrence of the termination event giving rise to the Termination Fee payment obligation described in this Section 9.5(b). Notwithstanding anything in this Agreement to the contrary, Parent and Merger Sub agree that payment of such Termination Fee and Expenses, if such payment is actually paid, shall be the sole and exclusive remedy of Parent and Merger Sub upon the termination of this Agreement, and that all other damages or remedies, at law or in equity (including provisional remedies), that might otherwise at the time of such termination, all of the conditions set forth in Section 6.1 and Section 6.3 shall have been available to Parent and Merger Sub are waived by Parent and Merger Sub upon the acceptance of such payment; provided, howeversatisfied (other than those, that prior to payment by their terms, are capable of such Termination Fee and Expenses to Parent, nothing herein shall prohibit Parent from seeking specific performance of this Agreement. Under no circumstances shall the Termination Fee be payable more than once pursuant to this Article IX. The Company acknowledges that the agreements contained in this Section 9.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay both the Termination Fee and Expenses in accordance with this Section 9.5(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the Termination Fee and/or Expenses, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the amount of the Termination Fee and/or Expenses, from the date such payment was required to be made until the date of payment being satisfied only at the prime rate as announced in the Wall Street Journal in effect on the date such payment was required to be made, after delivery to the Company of reasonable documentation evidencing such costs and expensesClosing).