Common use of Effect of Termination; Termination Fee Clause in Contracts

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7, the payment of expenses pursuant to SECTION 9.1, and ARTICLE IX generally, (y) to the extent that such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and (z) with respect to any intentional or knowing misrepresentations in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to (x) SECTION 8.2(c) or (y) SECTION 8.4(a), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transaction, or (iv) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION 8.4(b), then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, in the case of termination pursuant to

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION Section 8.5, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7Section 6.6, the payment of expenses pursuant to SECTION Section 9.1, and ARTICLE Article IX generally, (y) to the extent that such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and or (z) with respect to any intentional or knowing misrepresentations misrepresentation in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a such Company Acquisition Proposal, (2) and such --- Company Acquisition Proposal or intention or desire is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the Company's duly held Company Stockholders Stockholders' Meeting, and (3) thereafter this Agreement is terminated by --- either the Company or Parent pursuant to (xSection 8.2(a) SECTION 8.2(c) or (y) SECTION 8.4(a), and within nine months [Drop dead date] due to the Company's Stockholders' Meeting not occurring as a result of such termination such Company Acquisition Proposal is consummated or the (c)(i) [Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transactionstockholder disapproval], or (ivii) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION Section 8.4(b)) [Company Board withdraws recommendation], then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, pay Parent a fee equal to $150 million (the "Termination Fee"), payable by wire transfer of same day funds; provided, however, that no Termination Fee shall be payable to Parent pursuant -------- ------- to clause (i) of this paragraph (b) unless and until within twelve (12) months of such termination the Company or any of its subsidiaries enters into any Company Acquisition Agreement with respect to, or consummates, any Company Acquisition Proposal (for the purposes of the foregoing proviso the term "Company Acquisition Proposal" shall have the meaning assigned to such term in Section 6.2 except that references to 35% in the case definition of "Company Acquisition Proposal" in Section 6.2 as they relate to net revenues, net income, voting power or assets of Company shall be deemed to be references to "50%"), in which event the Termination Fee shall be payable upon the first to occur of such events; provided further, if the Company consummates a Company Acquisition -------- ------- Proposal during the twelve (12) month period subsequent to such termination contemplated by clause (i) of this paragraph (b) with the same person or an affiliate of the person that made and withdrew a Company Acquisition Proposal prior to such termination, the Company shall pay Parent the Termination Fee at the time contemplated by the preceding proviso. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.5(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) In the event that (i) a Parent Acquisition Proposal or the intention to make a Parent Acquisition Proposal shall have been made directly to the stockholders of Parent generally or otherwise publicly announced by Parent or the Person making such Parent Acquisition Proposal, and such Parent Acquisition --- Proposal or intention is not irrevocably and publicly withdrawn prior to the vote of Parent stockholders at the duly held Stockholders' Meeting. and --- thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) due to the Parent's Stockholders' Meeting not occurring as a result of such Parent Acquisition Proposal or (c)(ii) [Parent stockholder disapproval], or (ii) this Agreement is terminated by the Company pursuant to Section 8.3(b) [Parent Directors withdraw recommendation], then Parent shall promptly, but in no event later than the date of such termination, pay the Company the Termination Fee, payable by wire transfer of same day funds; provided, however, that no Termination Fee shall be payable to the Company -------- ------- pursuant to clause (i) of this paragraph (c) unless and until within twelve (12) months of such termination Parent or any of its subsidiaries enters into any Parent Acquisition Agreement with respect to, or consummates, any Parent Acquisition Proposal (for the purposes of the foregoing proviso the term "Parent Acquisition Proposal" shall have the meaning assigned to such term in Section 6.3 except that references to 35% in the definition of "Parent Acquisition Proposal" in Section 6.3 as they relate to net revenues, net income, voting power or assets of Parent, shall be deemed to be references to "50%"), in which event the Termination Fee shall be payable upon the first to occur of such events; provided further, that if the Parent consummates a Parent Acquisition -------- ------- Proposal during the twelve (12) month period subsequent to such termination contemplated by clause (i) of this paragraph (c) with the same person or an affiliate of such person that made and withdrew a Parent Acquisition Proposal prior to such termination, Parent shall pay the Company the Termination Fee at the time contemplated by the preceding proviso. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails promptly to pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this Section 8.5(c), Parent shall pay to the Company its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (d) If this Agreement is terminated under circumstances in which a party is entitled to receive the Termination Fee, the payment of such Termination Fee shall be the sole and exclusive remedy available to such party, except in the event of (x) a willful breach by the other party of any provision of this Agreement in any material respect, or (y) the intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the non-breaching Party shall have all rights, powers and remedies against the breaching Party which may be available at law or in equity. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION Section 8.5, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION Section 6.7, the payment of expenses pursuant to SECTION Section 9.1, and ARTICLE Article IX generally, (y) to the extent that such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and or (z) with respect to any intentional or knowing misrepresentations misrepresentation in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1i)(1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a such Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to by either the Company or Parent (x) SECTION 8.2(cpursuant to Section 8.2(a) due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (y) SECTION 8.4(aSection 8.2(c), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transaction, or (ivii) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION Section 8.4(b)) or (iii) the Company terminates this Agreement, for any reason, other than pursuant to Section 8.1, 8.2 or 8.3 hereof, then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, pay Parent a fee equal to $800,000 (the "Company Termination Fee"), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.5(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) In the event that Parent terminates this Agreement pursuant to Section 8.4(c) as a result of the failure of the conditions set forth in Section 7.3(g), Parent shall pay to the Company (i) $1,200,000 upon such termination and (ii) an amount equal to the lesser of (1) $250,000 and (2) all Transaction Expenses incurred by the Company prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from the Company for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses (collectively, the "Parent Termination Fee," and collectively with "Company Termination Fee," a "Termination Fee"). Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails promptly to pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this Section 8.5(c), Parent shall pay to the Company its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (d) If this Agreement is terminated under circumstances in which a party is entitled to receive a Termination Fee, the payment of such Termination Fee shall (i) survive the termination of this Agreement and (ii) be the sole and exclusive remedy available to such party, except in the case event of termination pursuant to(A) a willful and material breach by the other party of any provision of this Agreement or (B) an intentional or knowing material misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the non-breaching Party shall have all rights, powers and remedies against the breaching Party which may be available at law or in equity in respect of such willful and material breach or intentional or knowing material misrepresentation. Except as stated in the preceding sentence, all rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5Section 8.2, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7information, the payment of expenses pursuant to SECTION 9.1Section 9.2, and ARTICLE Article IX generally, (y) to the extent that such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and or (z) with respect to any intentional or knowing misrepresentations misrepresentation in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1i)(1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a such Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not 48 irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to by either the Company or Parent (x) SECTION 8.2(cpursuant to Section 8.1(c) due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (y) SECTION 8.4(aSection 8.1(d), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transaction, or (ivii) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION 8.4(bSection 8.1(g) or (iii) this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(h), then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, pay Parent a fee equal to $600,000 (the “Company Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.2(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.2(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) If this Agreement is terminated under circumstances in which the Parent is entitled to receive a Company Termination Fee, the payment of such Company Termination Fee shall be the sole and exclusive remedy available to such party, except in the case event of termination pursuant to(x) a willful breach by the other party of any provision of this Agreement or (y) the intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the non-breaching Party shall have all rights, powers and remedies against the breaching Party which may be available at law or in equity. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5, in In the event of the termination of this the Merger Agreement by either Parent or the Company as provided in this ARTICLE VIIIthe "Termination" paragraph above, this written notice thereof shall forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination is made, and the Merger Agreement shall forthwith become void null and void, except for certain provisions of the Merger Agreement relating to fees and expenses which shall survive such termination, and there shall be no liability or obligation on the part of Parent, Merger Subsidiary or the Parties Company except (a) for fraud or their respective affiliatesfor breach of the Merger Agreement, officerswith damages to be limited to out-of-pocket costs and (b) as otherwise set forth in the applicable provisions. Set forth below are the circumstances under which a termination fee is payable under the terms of the Merger Agreement. All references to paragraph numbers refer to the section entitled "Termination" above. If (w) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (c)(i) above, directors or stockholders except (x) with respect to the treatment Operating Board of confidential information Parent shall terminate the Merger Agreement pursuant to SECTION 6.7paragraph (d)(ii) above, the payment of expenses pursuant to SECTION 9.1, and ARTICLE IX generally, or (y) (I) the Board of Directors of the Company shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (c)(iii) and prior thereto there shall have been publicly announced another Acquisition Proposal or (II) the Operating Board of Parent shall terminate the Merger Agreement pursuant to paragraph (b)(i) above or (d)(iii) above due to a failure to satisfy the Minimum Condition or the conditions contained in paragraphs (h) or (i) of Section 14 of this Offer to Purchase and Parent shall have reasonably determined that such failure is attributable to there having been publicly announced another Acquisition Proposal, then in any such case as described in clause (w), (x) or (y), the Company shall not later than two business days after such termination of the Merger Agreement or, in the case of any termination by the Company pursuant to paragraph (c)(i) above, simultaneously with such termination pay to Parent an amount in cash equal to the extent that such termination results from the willful breach sum of a Party of any of its representations or warranties(i) Parent's documented out-of-pocket expenses, or any of its covenants or agreements and (z) with respect to any intentional or knowing misrepresentations incurred in connection with or pursuant to this the Merger Agreement or and the transactions contemplated hereby. hereby not to exceed $1,000,000; and (bii) $500,000 (together, the "Termination Fee"). In the event that the Company Merger Agreement is terminated pursuant to paragraph (b)(i) above due to a failure to satisfy the Minimum Condition or the Operating Board of Parent terminates this shall terminate the Merger Agreement pursuant to SECTION 8.2(c)paragraph (d)(iii) above due to a failure to satisfy the Minimum Condition, the Company shall (not later than 2 business days after such termination of the Merger Agreement) pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but 1,000,000 in cash; provided, however, that no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated payment shall be required pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction this paragraph if payment is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to (x) SECTION 8.2(c) or (y) SECTION 8.4(a), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transaction, or (iv) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION 8.4(b), then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, in the case of termination pursuant toparagraph above.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5Section 8.2, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7information, the payment of expenses pursuant to SECTION 9.1Section 9.2, and ARTICLE Article IX generally, (y) to the extent that such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and or (z) with respect to any intentional or knowing misrepresentations misrepresentation in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1i)(1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a such Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to by either the Company or Parent (x) SECTION 8.2(cpursuant to Section 8.1(c) due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (y) SECTION 8.4(aSection 8.1(d), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transaction, or (ivii) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION 8.4(bSection 8.1(g) or (iii) this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(h), then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, pay Parent a fee equal to $600,000 (the “Company Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.2(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.2(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) If this Agreement is terminated under circumstances in which the Parent is entitled to receive a Company Termination Fee, the payment of such Company Termination Fee shall be the sole and exclusive remedy available to such party, except in the case event of termination pursuant to(x) a willful breach by the other party of any provision of this Agreement or (y) the intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the non-breaching Party shall have all rights, powers and remedies against the breaching Party which may be available at law or in equity. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5Section 8.2, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7information, the payment of expenses pursuant to SECTION 9.1Section 9.2, and ARTICLE Article IX generally, (y) to the extent that such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and or (z) with respect to any intentional or knowing misrepresentations misrepresentation in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1i)(1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a such Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to by either the Company or Parent (x) SECTION 8.2(cpursuant to Section 8.1(c) [drop dead date] due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (y) SECTION 8.4(a), and within nine months of such termination such Section 8.1(d) [Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposalstockholder disapproval], (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transaction, or (ivii) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION 8.4(b)Section 8.1(g) [Company Board withdraws recommendation] or (iii) this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(h) [Company Superior Proposal], then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, pay Parent a fee equal to $300,000 (the “Company Termination Fee”), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.2(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.2(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) If this Agreement is terminated under circumstances in which the Parent is entitled to receive a Company Termination Fee, the payment of such Company Termination Fee shall be the sole and exclusive remedy available to such party, except in the case event of termination (x) a willful breach by the other party of any provision of this Agreement or (y) the intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the non-breaching Party shall have all rights, powers and remedies against the breaching Party which may be available at law or in equity. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party. (d) In the event that this Agreement is terminated by the Company pursuant toto Section 8.1(i), within ten (10) days of such termination, Parent shall pay Company its reasonable documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including all professional fees, as well as a fee, in the nature of liquidated damages, in the amount of $50,000.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.76.6, the payment of expenses pursuant to SECTION 9.1, and ARTICLE IX generally, (y) to the extent that such termination results from the willful and material breach of a Party of any of its representations or warranties, or any of its covenants or agreements and (z) with respect to any intentional or knowing misrepresentations in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION")Proposal, and within nine (9) months one year of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to (x) SECTION 8.2(c) or (y) SECTION 8.4(a), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.2(c) or SECTION 8.4(a), and (4) within nine (9) months one year of such termination a Financing an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing an Alternate Transaction, or (iviii) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION 8.4(b), then the Company shall pay Parent a fee equal to $2,600,000 2,000,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than 55 the date of such termination, in the case of termination pursuant toto SECTION 8.3(c), within three business days, in the case of termination pursuant to SECTION 8.4(b), or the earlier of the date the Company enters into a definitive agreement to consummate the transactions contemplated by an Alternate Transaction or an Alternate Transaction is consummated, as the case may be, in the case of termination pursuant to SECTIONS 8.2(a), 8.2(c) or 8.4(a). The Company acknowledges that the agreements contained in this SECTION 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this SECTION 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this SECTION 8.5(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) In the event that this Agreement is terminated by the Company pursuant to SECTIONS 8.3(b), then Parent shall promptly, but in no event later than the date of such termination, pay the Company a fee equal to the Termination Fee, payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this SECTION 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement, and accordingly, if Parent fails promptly to pay the amount due pursuant to this SECTION 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this SECTION 8.5(c), Parent shall pay to the Company its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (d) In the event that this Agreement is terminated by either Party pursuant to SECTION 8.2(d) or by the Company pursuant to SECTION 8.3(a), Parent shall pay to the Company an amount (the "EXPENSES FEE") equal to the lesser of (i) $500,000 and (ii) all Transaction Expenses (as defined below) incurred by the Company prior to such termination, such payment to be made promptly but in no event later than the fifth business day after receipt of an invoice from the Company for such Transaction Expenses, including reasonably detailed backup therefor. In the event this Agreement is terminated by either Party pursuant to SECTION 8.2(c) (other than as provided in SECTION 8.5(b)(ii) above) or by Parent pursuant to SECTION 8.4(a), the Company shall pay to Parent the Expenses Fee promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup therefor. 56 (e) In the event both Parent and the Company would otherwise be entitled to receive the Termination Fee under this SECTION 8.5 in connection with the termination of this Agreement, neither party shall be required to make any payment under this SECTION 8.5. (f) If this Agreement is terminated under circumstances in which Parent or the Company is entitled to receive the Termination Fee, (i) the obligation to pay the Termination Fee shall survive the termination of this Agreement and (ii) the payment of the Termination Fee shall be the sole and exclusive remedy available to Parent or the Company, as applicable, except in the event of (A) a willful breach of any provision of this Agreement or (B) an intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the party entitled to the Termination Fee shall have all rights, powers and remedies against the other party that may be available at law or in equity. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION Section 8.5, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7Section 6.6, the payment of expenses pursuant to SECTION Section 9.1, and ARTICLE Article IX generally, (y) to the extent that such termination results from the willful and material breach of a Party of any of its representations or warranties, or any of its covenants or agreements and (z) with respect to any intentional or knowing misrepresentations in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION Section 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION")Proposal, and within nine (9) months one year of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is 60 64 terminated pursuant to (x) SECTION Section 8.2(c) or (y) SECTION 8.4(a), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION Section 8.4(a), and (34) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months one year of such termination a Financing an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing an Alternate Transaction, or (iviii) this Agreement is terminated by the Company pursuant to SECTION Section 8.3(c) or by Parent pursuant to SECTION Section 8.4(b), then the Company shall pay Parent a fee equal to $2,600,000 2,000,000 (the "TERMINATION FEETermination Fee"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, in the case of termination pursuant toto Section 8.3(c), within three business days, in the case of termination pursuant to Section 8.4(b), or the earlier of the date the Company enters into a definitive agreement to consummate the transactions contemplated by an Alternate Transaction or an Alternate Transaction is consummated, as the case may be, in the case of termination pursuant to Sections 8.2(a), 8.2(c) or 8.4(a). The Company acknowledges that the agreements contained in this Section 8.5(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.5(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) In the event that this Agreement is terminated by the Company pursuant to Sections 8.3(b), then Parent shall promptly, but in no event later than the date of such termination, pay the Company a fee equal to the Termination Fee, payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement, and accordingly, if Parent fails promptly to pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee set forth in this Section 8.5(c), Parent shall pay to the Company its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (d) In the event that this Agreement is terminated by either Party pursuant to Section 8.2(d) or by the Company pursuant to Section 8.3(a), Parent shall pay to the Company an amount (the "Expenses Fee") equal to the lesser of (i) $500,000 and (ii) all Transaction Expenses (as defined below) incurred by the Company prior to such termination, such payment to be made promptly but in no event later than the fifth business day after receipt of an invoice from the Company for such Transaction Expenses, including reasonably detailed backup 61 65 therefor. In the event this Agreement is terminated by either Party pursuant to Section 8.2(c) (other than as provided in Section 8.5(b)(ii) above) or by Parent pursuant to Section 8.4(a), the Company shall pay to Parent the Expenses Fee promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup therefor. (e) In the event both Parent and the Company would otherwise be entitled to receive the Termination Fee under this Section 8.5 in connection with the termination of this Agreement, neither party shall be required to make any payment under this Section 8.5. (f) If this Agreement is terminated under circumstances in which Parent or the Company is entitled to receive the Termination Fee, (i) the obligation to pay the Termination Fee shall survive the termination of this Agreement and (ii) the payment of the Termination Fee shall be the sole and exclusive remedy available to Parent or the Company, as applicable, except in the event of (A) a willful breach of any provision of this Agreement or (B) an intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the party entitled to the Termination Fee shall have all rights, powers and remedies against the other party that may be available at law or in equity. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5Section 8.2, in the event of termination of this Agreement by either Parent or the Company as provided in this ARTICLE Article VIII, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7information, the payment of expenses pursuant to SECTION 9.1Section 9.2, and ARTICLE Article IX generally, (y) to the extent that such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and or (z) with respect to any intentional or knowing misrepresentations misrepresentation in connection with or pursuant to this Agreement or the transactions contemplated hereby. (b) In the event that the Company or Parent terminates this Agreement pursuant to SECTION 8.2(c), the Company shall pay to Parent an amount equal to the lesser of (1) $500,000 and (2) all Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal or a Financing Transaction (either, an "ALTERNATE TRANSACTION"), and within nine (9) months of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transaction, (ii) (1i)(1) a Company Acquisition Proposal or the intention or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders of the Company generally or otherwise publicly announced by the Company or the Person making a such Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to by either the Company or Parent (x) SECTION 8.2(cpursuant to Section 8.1(c) [drop dead date] due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (y) SECTION 8.4(a), and within nine months of such termination such Section 8.1(d) [Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposalstockholder disapproval], (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing Transaction, or (ivii) this Agreement is terminated by the Company pursuant to SECTION 8.3(c) or by Parent pursuant to SECTION 8.4(b)Section 8.1(g) [Company Board withdraws recommendation] or (iii) this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(h) [Company Superior Proposal], then the Company shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant to the first sentence of this SECTION 8.5(b), payable by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, pay Parent a fee equal to $300,000 (the "Company Termination Fee"), payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in this Section 8.2(b) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement, and accordingly, if the Company fails promptly to pay the amount due pursuant to this Section 8.2(b), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the Company for the fee set forth in this Section 8.2(b), the Company shall pay to Parent its costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made. (c) If this Agreement is terminated under circumstances in which the Parent is entitled to receive a Company Termination Fee, the payment of such Company Termination Fee shall be the sole and exclusive remedy available to such party, except in the case event of termination (x) a willful breach by the other party of any provision of this Agreement or (y) the intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby, in which event the non-breaching Party shall have all rights, powers and remedies against the breaching Party which may be available at law or in equity. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party. (d) In the event that this Agreement is terminated by the Company pursuant toto Section 8.1(i), within ten (10) days of such termination, Parent shall pay Company its reasonable documented out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby, including all professional fees, as well as a fee, in the nature of liquidated damages, in the amount of $50,000.

Effect of Termination; Termination Fee. (a) Except as set forth in this SECTION 8.5, in In the event of the termination and abandonment of this Agreement by either Parent or pursuant to Section 10.1, the Company Agreement shall terminate and have no effect, except as otherwise provided in herein and except that the provisions of this ARTICLE VIIISection 10.2, Section 10.5 and Article 11 of this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or their respective affiliates, officers, directors or stockholders except (x) with respect to the treatment of confidential information pursuant to SECTION 6.7, the payment of expenses pursuant to SECTION 9.1, and ARTICLE IX generally, (y) to the extent that survive any such termination results from the willful breach of a Party of any of its representations or warranties, or any of its covenants or agreements and (z) with respect to any intentional or knowing misrepresentations in connection with or pursuant to this Agreement or the transactions contemplated herebyabandonment. (b) In If, after the event that the Company or Parent date of this Agreement, (i) Sun terminates this Agreement pursuant to SECTION 8.2(cin accordance with Section 10.1(g), the Company shall pay to Parent an amount equal to the lesser or (ii) Advantage terminates this Agreement in accordance with Section 10.1(i), (either of (1i) or (ii) being a "Trigger Event"), then immediately upon the occurrence of a Trigger Event and in addition to any other rights and remedies of Sun, Advantage shall reimburse Sun for its expenses incurred in negotiation and pursuit of the Agreement and the related transactions contemplated thereunder, including but not limited to fees and expenses of its legal counselors, investment advisors, accountants and related professionals and costs associated with such transaction and process (the "Transaction Expenses") not to exceed $500,000 375,000, and (2) all if an Acquisition Transaction Expenses (as defined below) incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt of an invoice from Parent for such Transaction Expenses, including reasonably detailed backup for such Transaction Expenses. In the event that (i) this Agreement is terminated pursuant to SECTION 8.2(a) due to the Company Stockholders Meeting not occurring as a result of a Company Acquisition Proposal consummated or a Financing Transaction definitive agreement is entered into by Advantage relating to an Acquisition Transaction, in either case within 18 months following a Trigger Event (either, an a "ALTERNATE TRANSACTIONSubsequent Trigger Event"), then immediately upon the occurrence of a Subsequent Trigger Event and within nine in addition to any other rights and remedies of Sun, Advantage shall pay Sun a cash amount of $1.48 million as an agreed-upon termination fee and reimburse Sun for its Transaction Expenses not to exceed $250,000, less any Transaction Expenses already reimbursed pursuant to this Section 10.2(b) (9collectively, the "Termination Fee"). For purposes of this Section 10.2, "Acquisition Transaction" shall, with respect to Advantage, mean any of the following: (a) months a merger or consolidation, or any similar transaction (other than the Merger) of such termination an Alternate Transaction is consummated or the Company enters into a definitive agreement to consummate an Alternate Transactionany company with Advantage, (iib) a purchase, lease or other acquisition of all or substantially all the assets of Advantage, (c) a purchase or other acquisition of "beneficial ownership" by any "person" or "group" (as such terms are defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (1including by way of merger, consolidation, share exchange, or otherwise) a Company Acquisition Proposal which would cause such person or group to become the intention beneficial owner of securities representing 10% or desire to make a Company Acquisition Proposal shall have been made directly to the stockholders more of the Company generally or otherwise publicly announced by the Company or the Person making a Company Acquisition Proposal, (2) such Company Acquisition Proposal or intention or desire is not withdrawn prior to the vote voting power of the Company stockholders at the duly held Company Stockholders Meeting, and (3) thereafter this Agreement is terminated pursuant to (x) SECTION 8.2(c) or (y) SECTION 8.4(a), and within nine months of such termination such Company Acquisition Proposal is consummated or the Company enters into a definitive agreement to consummate such Company Acquisition Proposal, (iii) (1) a proposal for a Financing Transaction shall have been made to the Company, (2) such proposal is not withdrawn prior to the termination of this Agreement pursuant to SECTION 8.4(a), and (3) thereafter this Agreement is terminated pursuant to SECTION 8.4(a), and within nine (9) months of such termination a Financing Transaction is consummated or the Company enters into a definitive agreement to consummate such Financing TransactionAdvantage, or (ivd) this Agreement a tender or exchange offer to acquire securities representing 10% or more of the voting power of Advantage. (c) Advantage and Sun agree that the Termination Fee is terminated fair and reasonable in the circumstances. If a court of competent jurisdiction shall nonetheless, by a final, nonappealable judgment, determine that the Company pursuant to SECTION 8.3(c) or amount of any such Termination Fee exceeds the maximum amount permitted by Parent pursuant to SECTION 8.4(b)law, then the Company amount of such Termination Fee shall pay Parent a fee equal to $2,600,000 (the "TERMINATION FEE"), less any amount paid or payable pursuant be reduced to the first sentence of this SECTION 8.5(b), payable maximum amount permitted by wire transfer of same day funds. The Company shall pay the Termination Fee promptly, but in no event later than the date of such termination, law in the case circumstances, as determined by such court of termination pursuant tocompetent jurisdiction.