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 or (z) intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated hereby. (b) In the event that (i)(A) a Company Acquisition Proposal or the intention 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 such Company Acquisition Proposal, (B) such Company Acquisition Proposal or intention is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (C) thereafter this Agreement is terminated by either the Company or Parent (1) pursuant to Section 8.2(a) due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (2) Section 8.2(c), (ii) this Agreement is terminated by (A) Parent pursuant to Section 8.4(b) or (B) the Company pursuant to Section 8.3(a) or (iii) the Company terminates this Agreement, for any reason, other than pursuant to Section 8.1, 8.2 or 8.3(b) hereof, then the Company shall promptly, but in no event later than the earlier to occur of (x) sixty (60) days following the date of such termination; (y) the fifth (5th) business day after the date the Company enters into a definitive agreement to consummate the transactions contemplated by a Company Superior Proposal; and (z) the date the transactions contemplated by a Company Superior Proposal are consummated, pay Parent a fee equal to $500,000 (the “Company Termination Fee”), payable by wire transfer of same day funds. Notwithstanding the foregoing, if Parent’s revenue (in accordance with GAAP) for the fourth quarter ended April 30, 2009 is less than $4,500,000, the Company Termination Fee shall be reduced to zero. 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 pursuant to Section 8.2(d) and the Company is not in breach of this Agreement, Parent shall pay to the Company an amount equal to 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 detailed backup for such Transaction Expenses (collectively, the “Parent 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) In the event that this Agreement is terminated pursuant to Section 8.2(c) and neither Parent nor Merger Sub is in breach of this Agreement, the Company shall pay to Parent an amount equal to all Transaction Expenses 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 detailed backup for such Transaction Expenses (collectively, the “Parent Reimbursement Fee;” and, collectively with the Parent Termination Fee and the Company Termination Fee, each a “Termination Fee”). If the Company fails promptly to pay the amount due pursuant to this Section 8.5(d), 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(d), 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. (e) 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 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 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 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, 6.6 and the payment of expenses pursuant to Section 9.1, 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 or (z) intentional or knowing misrepresentation agreements, in connection with each case, as set forth in this Agreement or the transactions contemplated herebyAgreement. (b) In the event that (i)(A) a Company Acquisition Proposal or the intention 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 such Company Acquisition Proposal, (B) such Company Acquisition Proposal or intention is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (C) thereafter If this Agreement is terminated by either the Company or Parent (1) pursuant to Section 8.2(a) due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (2) Section 8.2(c), (ii) this Agreement is terminated by (A) Parent pursuant to Section 8.4(b) or (B) the Company pursuant to Section 8.3(a) or (iii) the Company terminates this Agreement, for any reason, other than pursuant to Section 8.1, 8.2 or 8.3(b) hereof, then the Company shall promptly, but in no event later than the earlier to occur of (x) sixty (60) days following the date of such termination; (y) the fifth (5th) business day after the date the Company enters into a definitive agreement to consummate the transactions contemplated by a Company Superior Proposal; and (z) the date the transactions contemplated by a Company Superior Proposal are consummated, pay Parent a fee equal to $500,000 (the “Company Termination Fee”), payable by wire transfer of same day funds. Notwithstanding the foregoing, if Parent’s revenue (in accordance with GAAP) for the fourth quarter ended April 30, 2009 is less than $4,500,000, the Company Termination Fee shall be reduced to zero. 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 pursuant to Section 8.2(d8.3(c) and the Company or 8.4(c), then, provided that Parent is not then in material breach of this Agreement, Parent shall pay to the Company an amount equal to 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 detailed backup for such Transaction Expenses (collectively, the “Parent 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) In the event that this Agreement is terminated pursuant to Section 8.2(c) and neither Parent nor Merger Sub is in breach terms of this Agreement, the Company shall pay to Parent an amount equal to all Transaction Expenses incurred by Parent prior to such termination promptly but in no event later than the fifth business day after receipt aggregate sum of an invoice from Parent for such Transaction Expenses, including detailed backup for such Transaction Expenses $12,000,000 (collectively, the “Parent Reimbursement Fee;” and, collectively with the Parent Termination Fee and the Company "Termination Fee, each a “Termination Fee”"). If the Company fails promptly to pay the amount due this Agreement is terminated pursuant to this Section 8.5(d), and, in order 8.2(c) as a result of the failure to obtain the Requisite Stockholder Approval and at the time of such paymenttermination an Acquisition Proposal by any third party shall have been announced, Parent commences and if the Company, within twelve (12) months after such termination, enters into a suit which results in a judgment against the Company for the fee set forth in this Section 8.5(d)definitive agreement with such third party with respect to an Acquisition Proposal, then the Company shall pay to Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection the Termination Fee concurrently with entering into such suitagreement. In addition, 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. (e) If if this Agreement is terminated under circumstances in which pursuant to Section 8.2(c) as a Party result of the failure to obtain the Requisite Stockholder Approval, and within six (6) months after such termination the Company or any of its subsidiaries enters into a definitive agreement for the consummation of an Acquisition Proposal with A-41 47 (c) Any payment required to be made pursuant to Section 8.5(b) shall be made as promptly as practicable but not later than three (3) business days after written notice of termination of this Agreement is entitled received by the party obligated to receive a Termination Fee, make such payment and shall be made by wire transfer of immediately available funds to an account designated by the party so owed. (d) Each of the Parties agrees that the payment in full of such the Termination Fee shall be the sole and exclusive remedy available to such Party, except for any action which results in the event payment of (x) a willful the Termination Fee to Parent, unless the termination of this Agreement results from the breach by the other a Party of any provision of its representations, warranties, covenants or agreements set forth in this Agreement or (y) the intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated herebyAgreement, 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.. ARTICLE IX MISCELLANEOUS AND GENERAL 9.1

Effect of Termination; Termination Fee. (a) Except as If this Agreement is validly terminated pursuant to Section 7.1, this Agreement shall become null and void and have no further force or effect, except that any such termination shall be without prejudice to the rights of any Party on account of the non-satisfaction of the conditions set forth in Article V or on account of the termination of this Agreement, each resulting from the intentional or willful breach or violation of the representations, warranties, covenants or agreements of the other Party under this Agreement. Notwithstanding anything in this Agreement to the contrary, the provisions of this Section 8.57.2 and Section 7.4 as well as, in to the event extent necessary to give effect thereto, Section 1.1, shall survive any termination of this Agreement. No termination of this Agreement by either Parent or shall affect the Company as provided in this Article VIIIobligations of the parties to the Confidentiality Agreement, all of which obligations shall survive the termination of this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Parties or in accordance with 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 or (z) intentional or knowing misrepresentation in connection with this Agreement or the transactions contemplated herebyterms. (b) In the event that (i)(A) a Company Acquisition Proposal or the intention 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 such Company Acquisition Proposal, (B) such Company Acquisition Proposal or intention is not irrevocably and publicly withdrawn prior to the vote of the Company stockholders at the duly held Company Stockholders Meeting, and (C) thereafter this Agreement is terminated (i) by the Investor pursuant to Section 7.1(e) or (ii) by either the Company Investor or Parent (1) pursuant to Section 8.2(a) due to the Company Stockholders Meeting not occurring as a result of such Company Acquisition Proposal or (2) Section 8.2(c), (ii) this Agreement is terminated by (A) Parent pursuant to Section 8.4(b) or (B) the Company pursuant to Section 8.3(a7.1(b)(iii) or if (iiiA) prior to the Company terminates Stockholders Meeting a Change of Recommendation shall have occurred as a result of a Superior Proposal and (B) within twelve (12) months after the termination of this Agreement, for any reason, other than pursuant the Company shall have entered into a definitive agreement with respect to Section 8.1, 8.2 or 8.3(b) hereofsuch Superior Proposal, then the Company shall promptly, but in no event later than the earlier pay to occur each of (x) sixty the Investor or its designee and (60y) days the Sellers’ Representative or its designee, within two (2) Business Days following the date of such termination; (y) termination by the fifth (5th) business day after the date Investor or the Company enters into (in the case of the foregoing clause (i)) or within two (2) Business Days following the execution of a definitive agreement with respect to consummate the transactions contemplated by a Company Superior Proposal; and (z) the date the transactions contemplated by a Company such Superior Proposal are consummated(in the case of the foregoing clause (ii)), pay Parent a fee as applicable, but subject to the last sentence of Section 7.3(c), an amount in cash by wire transfer of immediately available funds, one-half to the account specified by the Investor and one-half to the account specified by the Sellers’ Representative, as applicable, equal to $500,000 15,250,000 (the “Company Termination Fee”), payable . (c) The Company shall pay to each of the Investor and the Sellers’ Representative its Expenses in an amount not to exceed $1,225,000 (representing an aggregate amount of up to $2,450,000) if this Agreement is terminated pursuant to Section 7.1(b)(iii). Any Expenses due under this Section 7.2(c) shall be paid by wire transfer of same day fundsimmediately available funds to the accounts specified by the Investor and the Sellers’ Representative, as applicable, no later than two (2) Business Days after the Company’s receipt from the Investor or the Sellers’ Representative, as applicable, of an itemized statement identifying such Expenses. Notwithstanding Any Expenses paid by the foregoingCompany to the Investor or the Sellers’ Representative, if Parent’s revenue (in accordance with GAAP) for the fourth quarter ended April 30as applicable, 2009 is less than $4,500,000shall be credited against and reduce, on a dollar-for-dollar basis, the Company amount of any Termination Fee shall be reduced payable to zero. The the Investor or the Sellers’ Representative, as applicable, pursuant to Section 7.1(b)(ii). (d) Each of the Company and the Investor acknowledges that (i) the agreements contained in Section 7.2(b), Section 7.2(c) and this Section 8.5(b7.2(d) are an integral part of the transactions contemplated by this Agreement, Agreement and that, (ii) without these agreements, Parent the Company and the Investor would not enter into this Agreement. In no event shall the Company be required to pay to the Investor more than one Termination Fee or more than its portion of the Termination Fee, in each case, pursuant to Section 7.2(b). In the event that the Investor receives full payment of its portion of the Termination Fee pursuant to Section 7.2(b) following a valid termination of this Agreement in accordance with Section 7.1, the receipt of such portion of the Termination Fee shall be the sole and accordinglyexclusive remedy against the Company and its Representatives for any and all loss, if damage or other liability suffered or incurred by the Investor or its Representatives in connection with this Agreement (and the termination hereof) and the Contemplated Transactions (and the abandonment thereof) or any matter forming the basis for such termination, whether such losses, damages or liabilities are based on contract, tort or strict liability, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law or otherwise and whether by or through attempted piercing of the corporate or partnership veil, by or through a claim by or on behalf of a party hereto or another person or otherwise. Notwithstanding anything in this Agreement to the contrary, nothing in this Section 7.2(d) shall be deemed to affect the Investor’s rights to specific performance under Section 7.3 in order to specifically enforce this Agreement but only until such portion of the Termination Fee has been paid in accordance with this Agreement. If the Company fails promptly to timely pay the any amount due pursuant to this Section 8.5(b), 7.2(b) or Section 7.2(c) and, in order to obtain such payment, Parent the Investor or the Sellers’ Representative, as applicable, commences a suit which lawsuit that results in a judgment against the Company for the fee amount set forth in this Section 8.5(b7.2(b) or Section 7.2(c), the Company shall pay to Parent its costs and expenses (including reasonable attorneysthe Investor or the Sellers’ fees and expenses) in connection with such suitRepresentative, together with as applicable, interest on the such amount of the fee at the prime rate of CitibankX.X. Xxxxxx, N.A. in effect on the date such payment was required to be made. (c) In the event that this Agreement is terminated pursuant to Section 8.2(d) and the Company is not in breach of this Agreement, Parent shall pay to the Company an amount equal to 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 detailed backup for such Transaction Expenses (collectively, the “Parent 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) In the event that this Agreement is terminated pursuant to Section 8.2(c) and neither Parent nor Merger Sub is in breach of this Agreement, the Company shall pay to Parent an amount equal to all Transaction Expenses 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 detailed backup for such Transaction Expenses (collectively, the “Parent Reimbursement Fee;” and, collectively with the Parent Termination Fee and the Company Termination Fee, each a “Termination Fee”). If the Company fails promptly to pay the amount due pursuant to this Section 8.5(d), 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(d), 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. (e) 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 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 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.