Common use of Expenses and Termination Fees Clause in Contracts

Expenses and Termination Fees. (a) Except as set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, whether or not the Merger is consummated. (b) The Company shall pay to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of this Agreement and prior to the termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregate.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c) and (d) of this Section 8.37.3, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement (including the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The In the event that the Company shall terminate this Agreement pursuant to Section 7.1(e), then upon termination the Company shall pay or cause to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of this Agreement and prior to the termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under funds to Parent a termination fee equal to $95 million (the “Termination Fee”). (c) In the event that (i) Parent shall terminate this Agreement pursuant to Section 7.1(c) (ii) or (iii), and (ii) a definitive agreement is entered into by the Company with respect to a Takeover Proposal within 12 months following the date of such termination (regardless of whether the transactions contemplated by such agreement are consummated within 12 months following the date of such termination), then the Company shall promptly following consummation of such transaction pay or cause to be paid by wire transfer of same-day funds the Termination Fee to Parent; provided, however, that for the purpose of this Section 7.3(c), all references in the definition of Takeover Proposal to “30%” shall instead be deemed to refer to “a majority.” (d) In the event that (i) Parent or the Company shall terminate this Agreement pursuant to Section 7.1(g), (ii) prior to the time of such termination a bona fide Takeover Proposal with respect to the Company has been publicly made or otherwise made known to the Company’s stockholders and not withdrawn prior to such termination, and (iii) a definitive agreement is entered into by the Company with respect to a Takeover Proposal (regardless of whether the transactions contemplated by such agreement are consummated within 12 months following the date of such termination), the Company shall promptly following consummation of such transaction pay or cause to be paid by wire transfer of same-day funds the Termination Fee to Parent; provided, however, that for the purpose of this Section 7.3(d), all references in the definition of Takeover Proposal to “30%” shall instead be deemed to refer to “a majority.” (e) In no circumstances will event shall the Company be obligated to pay fees to Parent under this Section 7.3 an aggregate amount in excess of the Termination Fee. The Company’s payment of a Termination Fee pursuant to this Section 7.3 shall be the sole and exclusive remedy of Parent and/or Merger Sub with respect to the occurrences giving rise to such payment; provided that such limit shall not limit liability for a willful breach of this Agreement. (f) In the event that either the Company or Parent is entitled to terminate, and terminates, this Agreement pursuant to Section 8.3(b7.1(b) or 7.1(f)(i) and at the time of such termination (i) all of the conditions set forth in excess Sections 6.2(a) and (b) would be able to be satisfied, and (ii) neither the Company nor Parent is entitled to terminate this Agreement pursuant to Section 7.1(f)(ii), then Parent shall pay or cause to be paid to the Company a termination fee equal to $225 million (the “Nonclearance Termination Fee”) on or before the fifth (5th) Business Day following such termination, by wire transfer of $17,000,000 same-day funds to an account designated in writing to Parent by the aggregateCompany at least two (2) Business Days after such termination. Parent’s payment of a Nonclearance Termination Fee pursuant to this Section 7.3(f) shall be the sole and exclusive remedy of the Company with respect to the occurrences giving rise to such payment; provided that such limit shall not limit liability for a willful breach of this Agreement.

Expenses and Termination Fees. (a) Except as set forth in Subject to the terms of this Section 8.37.3, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The Company shall pay Parent a cash fee of $5,500,000 (the “Termination Fee Amount”), by wire transfer of immediately available funds to Parent: an account designated in writing by Parent within one (1) business day after satisfaction of all conditions to such payment referenced in this Section 7.3(b), in the event that (i) a fee of $17,000,000 (the "Termination Fee") if Parent or Company terminates this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii7.1(a)(ii) or (iv)Section 7.1(a)(iii) hereof, or Section 8.1(h); and (ii) following the Termination Fee if (A) after the date of this Agreement Execution Date and prior to the such termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (shall have been publicly announced or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1)shall have become publicly known and shall not have been withdrawn, (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (Eiii) within 12 twelve (12) months of following such termination of this Agreement, either a Company Acquisition Proposal (as defined below) is consummated consummated, or the Company enters into an agreement to consummate a letter of intent or binding contract providing for a Company Acquisition Proposal and any such Company Acquisition Proposal is thereafter consummated that includes later consummated. For purposes of this Agreement, a “Company Acquisition” shall mean any of the person party following transactions or a series of related transactions having any of the following effects (other than the transactions contemplated by this Agreement): (A) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which the stockholders of Company immediately preceding such transaction hold less than fifty percent (50%) of the aggregate equity interests in the surviving or resulting entity of such transaction; (B) a sale or other disposition by the Company of assets representing in excess of fifty percent (50%) of the aggregate fair market value of the Company’s business immediately prior to such agreement, whether sale; or not such consummation is within such 12-month period; and (iiiC) the Termination Fee if this Agreement is terminated pursuant acquisition by any person or group (including by way of a tender offer or an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to Section 8.1(e)(iiacquire beneficial ownership of shares representing in excess of fifty percent (50%) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) voting power of the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes then outstanding shares of capital stock of the person party to such agreement, whether or not such consummation is within such 12-month periodCompany. (c) Any If Parent terminates this Agreement pursuant to Section 7.1(a)(v)(A), Company shall promptly reimburse Parent for up to $2,000,000 of the actual, reasonable and documented out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its outside advisors, outside accountants and outside legal counsel). (d) If Parent terminates this Agreement pursuant to Section 7.1(a)(v)(B) or Section 7.1(a)(v)(C), Company shall promptly pay to Parent a cash fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior equal to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid Termination Fee Amount by wire transfer of same-day funds. Under no circumstances will the immediately available funds to an account designated in writing by Parent. (e) If Company be obligated to pay fees shall terminate this Agreement pursuant to Section 8.3(b7.1(a)(vi)(A), Parent shall promptly reimburse Company for up to $2,000,000 of the actual, reasonable and documented out-of-pocket costs and expenses incurred by Company in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its outside advisors, outside accountants and outside legal counsel). (f) If Company terminates this Agreement pursuant to Section 7.1(a)(vi)(B), as a condition and prior to such termination, the Company shall pay to Parent a cash fee equal to the Termination Fee Amount by wire transfer of immediately available funds to an account designated in excess writing by Parent. (g) Company and Parent acknowledge that the agreements contained in this Section 7.3 are an integral part of $17,000,000 the transactions contemplated by this Agreement, and that, without these agreements, Company and Parent would not enter into this Agreement. Company and Parent further agree that if Company or Parent, as the case may be, fails to pay the fees required hereunder, and, in order to obtain such payment, Company or Parent commences a suit against the aggregateother that results in a judgment against Company or Parent, as the case may be, for such fees, Company or Parent, as the case may be, shall pay to the other interest on such required fees from and including the date payment of the applicable fees xxxx originally due to (but excluding) the date of actual payment, at the prime rate of Bank of America, National Association in effect on the date such fee payment was originally required to be made. (h) Company and Parent acknowledge and agree that payment of the fees contemplated by this Section 7.3 shall be liquidated damages paid in lieu of any other damages that may arise of any breach of this Agreement.

Expenses and Termination Fees. (a) Except as set forth otherwise provided in this Section 8.3Agreement, all fees each party shall pay its own expenses incident to preparing for, entering into and expenses incurred in connection with carrying out this Agreement and the transactions contemplated hereby shall be paid by consummation of the party incurring such expensesTransactions, whether or not the Merger is shall be consummated. (b) The Company shall pay to Parent: If (i) a fee of $17,000,000 (the "Termination Fee") if Parent terminates this Agreement is terminated pursuant to either Section 8.1(e)(i), 8.1(c) (iiiCompany Change of Recommendation) or (iv), or Section 8.1(h); (ii) the Company terminates this Agreement pursuant to Section 8.1(d) (Company Superior Proposal), then the Company shall pay or cause to be paid to Parent the Company Termination Fee if in cash by wire transfer of immediately available funds to an account designated by Parent. If the fee shall be payable pursuant to clause (Ai) of the immediately preceding sentence, the fee shall be paid no later than three Business Days after the date notice of this Agreement and prior to the termination of this Agreement, any person makes a and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If (i) (A) Parent or the Company Takeover Proposal, terminates this Agreement pursuant to Section 8.1(b)(iv) (Failure to Obtain Company Stockholder Approval) or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and the Offer remains open until breach giving rise to such termination was a Willful and Material Breach by the scheduled expiration Company of a covenant or other agreement contained in this Agreement (provided, that solely for purposes of this Section 8.3(c), the word “may” in the definition of Willful and Material Breach shall be replaced with the word “would”), (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or disclosed prior to the Company Stockholders Meeting and (iii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal or consummates any transaction meeting the parameters of a Company Competing Proposal, then the Company shall pay or cause to be paid to Parent the Company Termination Fee (less any amounts previously paid by the Company to Parent in accordance with Section 8.3(d)), in cash by wire transfer of immediately following available funds to an account designated by Parent, on the earliest date of when such definitive agreement is executed or such transaction is consummated. For purposes of this Section 8.3(c), any reference in the definition of Company Competing Proposal to “twenty five percent (25%)” shall be deemed to be a reference to “more than eighty percent (80%)”. (d) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv) (Failure to Obtain Company Stockholder Approval), then the Company shall pay or cause to be paid to Parent the amount of the Parent Expenses, in cash by wire transfer of immediately available funds to an account designated by Parent within two Business Days of such termination. (e) In the event that a terminating party has the right to terminate pursuant multiple provisions of Section 8.1, such terminating party may elect which provision pursuant to which it is terminating this Agreement. The parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the parties would not enter into this Agreement. If the Company fails to promptly pay to Parent the amount due by it pursuant to this Section 8.3, interest shall accrue on such amount from the date such Company Takeover Proposal is made (or such later payment was required to be paid pursuant to the terms of this Agreement until the date as the Offer may be extended of payment at the Company's request pursuant prime rate set forth in The Wall Street Journal in effect on the date such payment was required to Section 1.1)be made. If, in order to obtain such payment, Parent commences a Proceeding that results in judgment for Parent for such amount, the Company shall pay to Parent its reasonable out-of-pocket costs and expenses (Cincluding reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The parties agree that the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to monetary remedies set forth in Section 8.1(d) and this Section 8.3 and the specific performance remedies set forth in Section 9.10 shall be the sole and exclusive remedies of (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (xi) the Company Acquisition Proposal is and its Subsidiaries against Parent, Merger Sub 1 and Merger Sub 2 and any of their respective former, current or future directors, officers, stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation (yin which case only Parent shall be liable for damages for such intentional and knowing fraud or Willful and Material Breach), and upon payment of such amount, none of Parent, Merger Sub 1 or Merger Sub 2 or any of their respective former, current or future general or limited partners, stockholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent, Merger Sub 1 and Merger Sub 2 against the Company enters into an agreement to consummate a Company Acquisition Proposal and its Subsidiaries and any of their respective former, current or future directors, officers, stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after liable for damages for such intentional and knowing fraud or Willful and Material Breach), and upon payment of such amount, none of the termination Company and its Subsidiaries or any of their respective former, current or future directors, officers, stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at Agreement or prior to the consummation Transactions, except for the liability of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregatecase of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c), (d), (e), (f), (g), (h), (i), (j), and (k) of this Section 8.3, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement (including the fees and expenses of its advisers, brokers, finders, agents, accountants, bankers and legal counsel) shall be paid by the party incurring such expensesexpense; provided, whether or not however, that Parent and the Merger is consummatedCompany shall each pay half of the filing fees for the submission under the HSR Act. (b) The In the event that the Company shall terminate this Agreement pursuant to Section 8.1(h), then the Company shall, within two Business Days of termination, pay by wire transfer of same-day funds to Parent: (i) Parent a termination fee of $17,000,000 6,600,000 (the "“Termination Fee"”). (c) if In the event that Parent shall terminate this Agreement is terminated pursuant to either Section 8.1(e)(i8.1(b)(ii), (iii) or (iv8.1(b)(iii), 8.1(i), or Section 8.1(h8.1(j);, then the Company shall, within two Business Days of termination, pay by wire transfer of same-day funds to Parent the Termination Fee. (iid) In the Termination Fee if (A) after event that Parent or the date of Company shall terminate this Agreement pursuant to Section 8.1(f) and prior a definitive agreement is entered into by the Company with respect to the a Company Takeover Proposal that is subsequently consummated or a Company Takeover Proposal is consummated within 12 months of such termination of this Agreement, any person makes a then the Company Takeover Proposalshall, (B) the Offer remains open until the scheduled expiration date immediately following on the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1)consummated, (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid pay by wire transfer of same-day funds. Under funds the Termination Fee to Parent, less any payments previously made pursuant to Section 8.3(f). (e) In the event that Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g), then Parent shall, within five Business Days of termination, pay by wire transfer of same-day funds to the Company an amount equal to $2 million plus all of the documented Expenses incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement. (f) In the event that Parent or the Company shall terminate this Agreement pursuant to Section 8.1(f), then the Company shall, within five Business Days of termination, pay by wire transfer of same-day funds to Parent an amount equal to $2 million plus all of the documented Expenses incurred by Parent in connection with this Agreement and the transactions contemplated by this Agreement. (g) In the event that (i)(A) Parent shall terminate this Agreement pursuant to Section 8.1(b)(i) due to a breach of this Agreement by the Company, (ii) prior to the time of such termination a bona fide Company Takeover Proposal has been publicly made or otherwise made known to the Company Board or its stockholders and not withdrawn prior to such termination, and (iii) a definitive agreement is entered into by the Company with respect to a Company Takeover Proposal that is subsequently consummated or a Company Takeover Proposal is consummated within 12 months of such termination of this Agreement, the Company shall, on the date such Company Takeover Proposal is consummated, pay by wire transfer of same-day funds the Termination Fee to Parent; provided, however, that for the purpose of this Section 8.3(g), all references in the definition of Company Takeover Proposal to “20%” shall instead be deemed to refer to “a majority.” (h) In the event that Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and a definitive agreement is entered into by Parent with respect to a Parent Takeover Proposal that is subsequently consummated or a Parent Takeover Proposal is consummated within 12 months of such termination of this Agreement, then Parent shall, on the date such Parent Takeover Proposal is consummated, pay by wire transfer of same-day funds the Termination Fee to the Company, less any payments previously made pursuant to Section 8.3(e). (i) In the event that the Company shall terminate this Agreement pursuant to Section 8.1(c)(ii), 8.1(c)(iii), 8.1(l), or 8.1(m), then Parent shall, within two Business Days of termination, pay by wire transfer of same-day funds to the Company the Termination Fee. (j) In the event that (i)(A) the Company shall terminate this Agreement pursuant to Section 8.1(c)(i) due to a breach of this Agreement by Parent, (ii) prior to the time of such termination a bona fide Parent Takeover Proposal has been publicly made or otherwise made known to the Parent Board or its stockholders and not withdrawn prior to such termination, and (iii) a definitive agreement is entered into by Parent with respect to a Parent Takeover Proposal that is subsequently consummated or a Parent Takeover Proposal is consummated within 12 months of such termination of this Agreement, Parent shall, on the date such Parent Takeover Proposal is consummated, pay by wire transfer of same-day funds the Termination Fee to the Company; provided, however, that for the purpose of this Section 8.3(j), all references in the definition of Parent Takeover Proposal to “20%” shall instead be deemed to refer to “a majority.” (k) In the event that Parent shall terminate this Agreement pursuant to Section 8.1(k), then Parent shall, within two Business Days of termination, pay by wire transfer of same-day funds to the Company the Termination Fee. (l) In no circumstances will event shall the Company be obligated to pay fees pursuant to Parent or Parent be obligated to pay the Company under this Section 8.3(b) 8.3 an aggregate amount in excess of $17,000,000 in the aggregateTermination Fee. The payment of a Termination Fee pursuant to this Section 8.3 shall be the sole and exclusive monetary remedy of the parties with respect to the occurrences giving rise to such payment.

Expenses and Termination Fees. (a) Except as set forth in this Subject to Section 8.37.3(b), whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The In the event that the Company shall pay to Parent: (i) shall, at a fee of $17,000,000 (the "Termination Fee") if this Agreement time when there is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date no breach of this Agreement such as would cause the condition set forth in Section 6.3(a) hereof to not be satisfied, and prior to approval of the termination of Merger by Exodus stockholders, terminate this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request Agreement pursuant to Section 1.17.1(d)(ii) following the making of an Exodus Acquisition Offer then Exodus shall promptly (but in no event later then five (5) business days after such termination) pay to the Company Sixty Five Million Dollars ($65,000,000), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) if within 12 months of one year after such termination a Company Third Party Acquisition Proposal is consummated shall have occurred or the Company enters Exodus or any of its subsidiaries shall have entered into an agreement to consummate providing for a Company Third Party Acquisition Proposal and any Company Acquisition Proposal which is thereafter consummated that includes the person party to such agreementsubsequently consummated, whether or not such consummation is within such 12-month period; and then Exodus shall promptly (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either but in no event later than five (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (25) business days after the termination consummation of such Third Party Acquisition) pay to Company the additional amount of Two Hundred Thirty-Five Million Dollars ($235,000,000). In the event that Company shall, at a time when there is no breach of this Agreement. Any fee due under Agreement such as would cause the condition set forth in Section 8.3 6.3(a) hereof to not be satisfied, terminate this Agreement pursuant to Section 7.1(d)(iii) following the making of any Exodus Acquisition Offer (b)(iiwhich term for purposes of this Section 7.3(b) also includes any Third Party Acquisition Proposal that has been publicly disclosed prior to the Exodus Stockholders Meeting and with respect to which neither the party making that Third Party Acquisition Proposal nor Exodus has publicly disclosed prior to the Exodus Stockholders Meeting that the party making that Third Party Acquisition Proposal has made an unconditional commitment to support the Merger and the transactions contemplated by the Ancillary Agreements and the Commercial Agreements) and, either (A) no later than one year after such termination the Third Party Acquisition contemplated by such pending Exodus Acquisition Offer ("Pending Transaction") shall be paid at have occurred or prior Exodus or any ------------------- of its subsidiaries shall have entered into an agreement with respect to the Pending Transaction which is subsequently consummated, or (B) no later than six months after such termination any other Third Party Acquisition shall have occurred or Exodus or any of its subsidiaries shall have entered into an agreement with respect to any other Third Party Acquisition, then Exodus shall promptly (but in no event later than five (5) business days after the earlier of the consummation of the relevant transactionPending Transaction under clause (A) or the consummation of the Third Party Acquisition under clause (B)) pay to Company the amount of Three Hundred Million Dollars ($300,000,000). All fees due under Any payment pursuant to this Section 8.3(b7.3(b) shall be paid made in immediately available funds by wire transfer to an account specified by the Company. Such payment will relieve Exodus from any liability it might otherwise have in accordance with Section 7.2 with respect to any breach of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregatethis Agreement.

Expenses and Termination Fees. (a) Except as set forth in Subject to the remaining subsections of this Section 8.37.3, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The In the event that (i) the Company shall terminate this Agreement pursuant to Section 7.1(h), (ii) Parent shall terminate this Agreement pursuant to Section 7.1(e)(i) or (f), or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 7.1(d) at any time during which this Agreement was terminable by Parent pursuant to Section 7.1(f), the Company shall pay the Termination Fee to Parent:. (c) In the event that (i) Parent or the Company shall terminate this Agreement pursuant to Section 7.1(b) (if at such time this Agreement was terminable by Parent pursuant to Section 7.1(e)), (c) (if the relevant judgment, injunction, order, decree or action is issued in connection with or is otherwise related to the pendency of a fee Takeover Proposal), (d) or (e)(ii), (ii) there shall have been disclosed at or prior to the time of $17,000,000 such termination a bona fide Takeover Proposal with respect to the Company (that shall not have been (A) withdrawn prior to the "time of such termination or (B) if so withdrawn, reinstated or otherwise made (or another Takeover Proposal is made by the same Person) within twelve months of such termination), and (iii) a definitive agreement or letter of intent is entered into by the Company with respect to a Takeover Proposal within twelve months of such termination of this Agreement and is consummated, or a Takeover Proposal otherwise is consummated within twelve months of such termination of this Agreement, the Company shall pay the Termination Fee"Fee to Parent. (d) In the event that a Termination Fee is payable to Parent, the Company shall pay the Termination Fee to Parent (i) if this Agreement is terminated pursuant to either Section 8.1(e)(i7.3(b), on the date of termination (iiiit being understood that no termination under Section 7.1(h) or (iv), or Section 8.1(h); shall be effective until Parent shall have received the Termination Fee) and (ii) the Termination Fee if (A) after the date of this Agreement and prior to the termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii7.3(c), at the time of consummation of the Takeover Proposal. (e) and within 12 months In the event that (i) this Agreement is terminated by either party pursuant to Section 7.1(b) or pursuant to Section 7.1(c), (ii) as of the date of such termination either (A) the condition set forth in Section 6.1(b) of this Agreement shall not have been satisfied (other than for a reason based on or related to the Existing Cases) or (B) any decree, judgment, injunction or other order (in each case that (x) the Company Acquisition Proposal is consummated based on or related to Antitrust Laws but (y) is not based on or related to the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated Existing Cases) that includes the person party to such agreementprevents, whether prohibits or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to delays the consummation of the relevant transaction. All fees due under Section 8.3(bTransactions exists or is in effect; and (iii) shall be paid by wire transfer at the time of same-day funds. Under no circumstances will any such termination the Company is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and all of the conditions set forth in Article VI have been satisfied or waived, except for any of the conditions set forth in Section 6.1(b) or Section 6.1(c) and such other conditions that are capable of being satisfied on the date of termination but, by their terms, cannot be obligated satisfied until the Closing Date, then Parent shall pay the Termination Fee to the Company within two Business Days after the date of such termination. (f) In the event that either party fails to pay when due any amount payable under this Section 7.3 and the other party commences a suit that results in a judgment against such first party for the Termination Fee, then such defaulting party shall reimburse such other party for all costs and expenses (including disbursements and reasonable fees pursuant to Section 8.3(bof counsel) incurred in excess of $17,000,000 in the aggregateconnection with such suit.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b) and (c) of this Section 8.38.3 and Section 5.3, whether or not the Mergers are consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not expense; provided that the Merger is consummatedparties shall share equally the filing fees due under HSR and any other Antitrust laws. (b) The Company shall pay to Parent: If (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of this Agreement and prior to the termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (Dx) this Agreement is terminated by either party pursuant to Section 8.1(d8.1(a)(vii)(B) due to a failure to obtain Parent Stockholder Approval and at or before Parent’s stockholder meeting (Eor any adjournment thereof), any Person or “group” (as defined in Section 13(d)(3) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into Exchange Act) shall have publicly announced an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, intention (whether or not conditional) to make a Takeover Proposal in respect of Parent and (y) concurrently with or within twelve (12) months after such consummation is within such 12-month period; and (iii) termination, a Third Party Acquisition Event for Parent occurs, then Parent shall pay the Termination Fee if to Company within five (5) business days of the occurrence of that Third Party Acquisition Event; (c) If (x) this Agreement is terminated by either party pursuant to Section 8.1(e)(ii8.1(a)(vii)(B) due to a failure of Company to obtain Company Stockholder Approval and within 12 months of such termination either (x) at or before the Company Acquisition Stockholders Meeting (or any adjournment thereof), any Person or “group” (as defined in Section 13(d)(3) of the Exchange Act) shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal is consummated or in respect of Company and (y) concurrently with or within twelve (12) months after such termination, a Third Party Acquisition Event for Company occurs, then Company shall pay the Company enters into an agreement Termination Fee to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is Parent within such 12-month period five (c) Any fee due under Section 8.3(b)(i) shall be paid within two (25) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(boccurrence of that Third Party Acquisition Event; (d) shall be paid If this Agreement is terminated by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b8.1(a)(iii), then Parent shall pay the Termination Fee to Company within five (5) in excess business days of $17,000,000 in the aggregatetermination; or (e) If this Agreement is terminated by Parent pursuant to Section 8.1(a)(iv), then Company shall pay the Termination Fee to Parent within five (5) business days of the termination.

Expenses and Termination Fees. (a) Except as set forth otherwise provided in this Section 8.3Agreement, all fees each party shall pay its own expenses incident to preparing for, entering into and expenses incurred in connection with carrying out this Agreement and the transactions contemplated hereby shall be paid by consummation of the party incurring such expensesTransactions, whether or not the Merger is shall be consummated. (b) The Company shall pay to Parent: If (i) a fee of $17,000,000 (the "Termination Fee") if Parent terminates this Agreement is terminated pursuant to either Section 8.1(e)(i), 8.1(c) (iiiCompany Change of Recommendation) or (iv), or Section 8.1(h); (ii) the Company terminates this Agreement pursuant to Section 8.1(d) (Company Superior Proposal), then the Company shall pay or cause to be paid to Parent the Company Termination Fee if in cash by wire transfer of immediately available funds to an account designated by Parent. If the fee shall be payable pursuant to clause (Ai) of the immediately preceding sentence, the fee shall be paid no later than three (3) Business Days after the date notice of this Agreement and prior to the termination of this Agreement, and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(e) (Parent Change of Recommendation) or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay or cause to be paid to the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company. If the fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three (3) Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (d) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Shareholder Approval) or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and the breach giving rise to such termination was a Willful and Material Breach by the Company of a covenant or other agreement contained in this Agreement (provided, that solely for purposes of this Section 8.3(d), the word “may” in the definition of Willful and Material Breach shall be replaced with the word “would”), (ii) on or before the date of any person makes such termination a Company Takeover Competing Proposal shall have been publicly announced or disclosed prior to the Company Shareholders Meeting and (iii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal or consummates any transaction meeting the parameters of a Company Competing Proposal, then the Company shall pay or cause to be paid to Parent the Company Termination Fee (less any amounts previously paid by the Company to Parent in accordance with Section 8.3(f)), in cash by wire transfer of immediately available funds to an account designated by Parent, on the earliest date of when such definitive agreement is executed or such transaction is consummated. For purposes of this Section 8.3(d), any reference in the definition of Company Competing Proposal to “twenty five percent (25%)” shall be deemed to be a reference to “more than eighty percent (80%)”. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) or (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request terminates this Agreement pursuant to Section 1.18.1(b)(iii) (Parent Terminable Breach) and the breach giving rise to such termination was a Willful and Material Breach by Parent of a covenant or other agreement contained in this Agreement (provided, that solely for purposes of this Section 8.3(e), the word “may” in the definition of Willful and Material Breach shall be replaced with the word “would”), (Cii) on or before the Minimum Tender Condition date of any such termination a Parent Competing Proposal shall have been publicly announced or disclosed prior to the Parent Stockholders Meeting and (iii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal or consummates any transaction meeting the parameters of a Parent Competing Proposal, then Parent shall pay or cause to be paid to the Company the Parent Termination Fee (less any amounts previously paid by Parent to the Company in accordance with Section 8.3(g)), in cash by wire transfer of immediately available funds to an account designated by the Company, on the earliest date of when such definitive agreement is not satisfied at executed or such transaction is consummated. For purposes of this Section 8.3(e), any reference in the expiration definition of Parent Competing Proposal to “twenty five percent (25%)” shall be deemed to be a reference to “more than eighty percent (80%)”. (f) If Parent or the Offer, (D) Company terminates this Agreement is terminated pursuant to Section 8.1(d8.1(b)(iv)(A) and (E) within 12 months of such termination a Failure to Obtain Company Acquisition Proposal is consummated or Shareholder Approval), then the Company enters into an agreement shall pay or cause to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid to Parent the amount of the Parent Expenses in cash by wire transfer of immediately available funds to an account designated by Parent within two (2) business days after Business Days of such termination. (g) If Parent or the termination of Company terminates this Agreement. Any fee due under Agreement pursuant to Section 8.3 8.1(b)(iv)(B) (b)(ii) Failure to Obtain Parent Stockholder Approval), then Parent shall pay or cause to be paid at or prior to the consummation Company the amount of the relevant transaction. All fees due under Section 8.3(b) shall be paid Company Expenses in cash by wire transfer of same-day funds. Under no circumstances will immediately available funds to an account designated by the Company within two (2) Business Days of such termination. (h) In no event shall either party be obligated entitled to pay fees receive more than one payment of the Company Termination Fee or the Parent Termination Fee, as applicable, and any payment of the Company Termination Fee or the Parent Termination Fee shall be paid net of (and not in addition to) any payment by the Company or Parent of the Parent Expenses or the Company Expenses, as applicable. In the event that a terminating party has the right to terminate pursuant multiple provisions of Section 8.1, such terminating party may elect which provision pursuant to which it is terminating this Agreement. The parties agree that the agreements contained in this Section 8.3(b8.3 are an integral part of the Transactions, and that, without these agreements, the parties would not enter into this Agreement. If a party fails to promptly pay the amount due by it pursuant to this Section 8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, the other party commences a Proceeding that results in judgment for such party for such amount, the defaulting party shall pay the other party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in excess connection with such Proceeding. The parties agree that the monetary remedies set forth in Section 8.1(d) and this Section 8.3 and the specific performance remedies set forth in Section 9.10 shall be the sole and exclusive remedies of $17,000,000 (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the aggregatecase of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent shall be liable for damages for such intentional and knowing fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future general or limited partners, stockholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional and knowing fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Expenses and Termination Fees. (a) Except as set forth in this Section 8.3Subject to Sections 7.3(b), (c) and (d), whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The Company In the event that this Agreement is terminated in accordance with Section 7.1(a)(iii), (iv)(A), (iv)(B) or (v), then the party entitled to terminate this Agreement pursuant to such provisions (the "Terminating Party") shall pay to Parent: be paid by the non-Terminating Party, within ten (i10) a fee business days of the termination thereof, the sum of $17,000,000 100,000 (the "Termination Fee"). Furthermore, (x) the Company shall pay to Parent the Termination Fee if the Company terminates this Agreement pursuant to Section 7.1(a)(iv)(C); (y) the Company shall pay to Parent the Termination Fee if Asset Value Fund, LP or any of the Company's officers or directors who own shares of Company Common Stock do not vote such shares in favor of the Merger and, as a result thereof, the Company's shareholders do not approve the Merger; and (z) Parent shall pay to the Company the Termination Fee if any of its officers or directors who own shares of Company Common Stock and Parent Common Stock do not vote such shares in favor of the Merger and, as a result thereof, the Company's shareholders or the Parent's shareholders do not approve the Merger. (c) In addition to the fees payable pursuant to Section 7.3(b) above, in the event that the Company or Parent (hereinafter, a "Selling Company") accepts, in writing, an offer for the sale, merger or exchange of any of its shares or the sale of all or substantially all of its assets from any entity, party or group, other than Parent in the case of the Company, prior to the later of (i) March 15, 2003 or (ii) provided that notice of the Company Shareholders Meeting and the Parent Shareholders Meeting, as applicable, have been given and not withdrawn prior to March 15, 2003, the vote of their respective shareholders relating to the Merger, regardless of whether such acceptance is approved by the Board of Directors of the Selling Company, the shareholders of the Selling Company, or such transaction is consummated, then the Selling Company shall immediately upon such acceptance pay to the non-Selling Company, in cash, an amount equal to five percent (5%) of the total consideration (whether such consideration is to be paid in cash, securities or other property) of the offer accepted by the Selling Company (the "Break-Up Fee"). The Break-Up Fee is due and payable even if this Agreement is terminated pursuant to by either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of this Agreement and party hereto prior to the termination acceptance of such third party offer; provided that no Break-Up Fee will be paid to any party who takes any action, contrary to the terms of this Agreement, any person makes a Company Takeover Proposal, (B) to willfully avoid consummating the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of transactions contemplated by this Agreement. Any fee In the event the non-Selling Company is in material breach of this Agreement at the time an offer is accepted by the Selling Company, any payment of the Break-Up Fee by the Selling Company shall not constitute a waiver or release of the non-Selling Company's liability for damages arising from such breach and the Selling Company reserves all rights to seek recovery thereof. The Break-Up Fee will accrue interest at twelve percent (12%) per annum from the date it is due under Section 8.3 (b)(ii) shall until paid in full and the Selling Company hereby acknowledges that such action will constitute irreparable harm to the other party and further agrees that the non-Selling Company will be paid at or prior entitled to obtain an affirmative injunction, in any court of competent jurisdiction, which would enjoin the consummation of any such sale of the relevant transactionSelling Company's shares or assets until the Break-Up Fee, with interest, is paid in full. All Upon payment of the Break-Up Fee (together with any accrued interest specified in this Section 7.3(c) and any attorney's fees due specified in Section 8.11) and the Termination Fee, if applicable in accordance with Section 7.3(b), notwithstanding Section 7.2, the Selling Company shall have no further liability or obligation with respect to this Agreement; provided that if the Selling Company commences an action against the non-Selling Company then the non-Selling Company shall be entitled to assert any and all counterclaims hereunder and the Selling Company shall be liable for all damages in connection with such counterclaims including attorney's fees under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregate8.11 hereof.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b) and (c) of this Section 8.311.3, whether or not the Business Combination is consummated, all fees costs and expenses (including transfer and other similar Taxes) incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The If Parent terminates this Agreement pursuant to Section 11.1(f) then Company shall promptly reimburse Parent for all of the out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel). (c) If Company terminates this Agreement pursuant to Section 11.1(g) Parent shall promptly reimburse Company for all of the out-of-pocket costs and expenses incurred by Company in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel). (d) In the event this Agreement is terminated by (i) the Parent pursuant to subsection (e) or (f) of Section 11.1(f) or by (ii) the Company pursuant to 11.1(g), in each case subsequent to August 15, 2008 and prior to June 29, 2009, then (A) in the event the Company is the terminating party and the Parent enters into a binding agreement to consummate, or consummates, an Alternative Proposal any time prior to June 29, 2009, the Parent shall pay to the Company a one-time termination fee of $1,000,000, and (B) in the event the Parent is the terminating party and the Company enters into a binding agreement to consummate, or consummates, a Company Alternative Proposal any time prior to June 29, 2009, the Company shall pay to Parent: (i) the Parent a one-time termination fee of $17,000,000 3,000,000 (the "either such payment, a “Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i”), . (iii) or (iv), or Section 8.1(h); (ii) the Any Termination Fee if (A) after shall be deemed to include the date reimbursement for all of the out-of-pocket costs and expenses incurred by the terminating party in connection with this Agreement and prior to the termination transactions contemplated hereby, including, without limitation, the fees and expenses of this Agreementits advisors, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1accountants and legal counsel.), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregate.

Expenses and Termination Fees. (a) Except Mountain shall be entitled to the Termination Fee upon the occurrence of any of the following events (each an “Xxxxxxx Termination Fee Event”) which shall be paid by Xxxxxxx within the time specified in respect of each such Xxxxxxx Termination Fee Event: (i) this Agreement is terminated by Mountain pursuant to Section 8.2(c)(i) (Xxxxxxx Change in Recommendation) (but not including a termination by Mountain pursuant to Section 8.2(c)(i) in circumstances where the Xxxxxxx Change in Recommendation resulted from the occurrence of a Mountain Material Adverse Effect) or Section 8.2(c)(vi) (Superior Proposal Notice)) in which case the Termination Fee shall be paid on the first Business Day following such termination; (ii) this Agreement is terminated by Xxxxxxx pursuant to Section 8.2(d)(ii) (to enter into a Superior Proposal), in which case the Termination Fee shall be paid concurrent with such termination; or (iii) this Agreement is terminated by Mountain pursuant to Section 8.2(c)(iv) (Breach of Non Solicitation) or Section 8.2(c)(v) (Xxxxxxx Meeting has not occurred), or by either Party pursuant to Section 8.2(b)(i) (Outside Date) or Section 8.2(b)(iv) (No Xxxxxxx Shareholder Approval) or by Xxxxxxx pursuant to Section 8.2(b)(i) (Effective Time not prior to the Outside Date) (in circumstances where Mountain would also be entitled to terminate this Agreement pursuant to Section 8.2(c)(iv), Section 8.2(c)(v), Section 8.2(b)(i) or Section 8.2(b)(iv)), but only if, in the case of this Section 8.3(a)(iii), prior to the termination of this Agreement, an Acquisition Proposal shall have been made to Xxxxxxx and publicly announced, or an Acquisition Proposal with respect to Xxxxxxx is publicly announced or any Person shall have publicly announced the intention to make an Acquisition Proposal with respect to Xxxxxxx (other than by Mountain), and if within nine months following the date of such termination: (A) an Acquisition Proposal (whether or not it is the Acquisition Proposal referred to above) is consummated by Xxxxxxx; or (B) Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of, or the Xxxxxxx Board approves or recommends, an Acquisition Proposal and at any time thereafter (whether or not within nine months following the date of termination of this Agreement), such Acquisition Proposal is consummated, in which case the Termination Fee shall be payable within two Business Days following the closing of the applicable transaction referred to therein. For purposes of this Section 8.3(a)(iii), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%” (b) Xxxxxxx shall be entitled to the Termination Fee upon the occurrence of any of the following events (each a “Mountain Termination Fee Event”) which shall be paid by Mountain within the time specified in respect of each such Mountain Termination Fee Event: (i) this Agreement is terminated by Xxxxxxx pursuant to Section 8.2(d)(i) (Mountain Change in Recommendation) (but not including a termination by Xxxxxxx pursuant to Section 8.2(d)(i) in circumstances where the Mountain Change in Recommendation resulted from the occurrence of a Xxxxxxx Material Adverse Effect) or Section 8.2(d)(v) (Superior Proposal Notice) in which case the Termination Fee shall be paid on the first Business Day following such termination; (ii) this Agreement is terminated by Mountain pursuant to Section 8.2(c)(ii) (to enter into a Superior Proposal), in which case the Termination Fee shall be paid concurrent with such termination; or (iii) this Agreement is terminated by Xxxxxxx pursuant to Section 8.2(d)(vi) (Breach of Non Solicitation) or Section 8.2(d)(iv) (Mountain Meeting has not occurred), or by either Party pursuant to Section 8.2(b)(i) (Outside Date) or Section 8.2(b)(iii) (No Mountain Shareholder Approval) or by Mountain pursuant to Section 8.2(b)(i) (Effective Time not prior to the Outside Date) (in circumstances where Xxxxxxx would also be entitled to terminate this Agreement pursuant to Section 8.2(d)(vi), Section 8.2(d)(v), Section 8.2(b)(i) or Section 8.2(b)(iv)), but only if, in the case of this Section 8.3(b)(iii), prior to the termination of this Agreement, an Acquisition Proposal shall have been made to Mountain and publicly announced, or an Acquisition Proposal with respect to Mountain is publicly announced or any Person shall have publicly announced the intention to make an Acquisition Proposal with respect to Mountain (other than by Xxxxxxx), and if within nine months following the date of such termination: (A) an Acquisition Proposal (whether or not it is the Acquisition Proposal referred to above) is consummated by Mountain; or (B) Mountain and/or one or more of its subsidiaries enters into a definitive agreement in respect of, or the Mountain Board approves or recommends, an Acquisition Proposal and at any time thereafter (whether or not within nine months following the date of termination of this Agreement), such Acquisition Proposal is consummated; in which case the Termination Fee shall be payable within two Business Days following the closing of the applicable transaction referred to therein. For purposes of this Section 8.3(b)(iii), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”. (c) The Termination Fee shall be payable by the Party required to pay such fee by wire transfer in immediately available funds to an account specified by the Party to whom such fee is payable. (d) Each of the Parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. The Parties further acknowledge and agree that the Termination Fee is a payment of liquidated monetary damages which are a genuine pre-estimate of the damages which the Party entitled to receive such fee will suffer or incur as a result of the cancellation and termination of all rights and obligations with respect to the direct or indirect acquisition of Xxxxxxx by Mountain in the circumstances in which the Termination Fee is payable, that such payment is not for lost profits or a penalty, and that no Party shall take any position inconsistent with the foregoing. Each of the Parties irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Each of the Parties hereby acknowledges and agrees that, upon any termination of this Agreement as permitted under Section 8.2 under circumstances where a Party is entitled to the Termination Fee and such Termination Fee is paid in full to such Party, the Party to whom such fee has been paid shall be precluded from any other remedy against the other Party at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Party who has paid such fee or any of its subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby. (e) Subject to the last sentence of Section 8.3(d), nothing in this Section 8.3 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreement, and any requirement for securing or posting of any bond in connection with the obtaining of any such injunction or specific performance is hereby being waived. Each of the Parties hereby acknowledges that a Party shall be entitled to elect to be paid a Termination Fee under this Section 8.38.3 or pursue its remedies contemplated in this Subsection 8.3(e) and Section 9.3. (f) Except as otherwise provided herein, all fees fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby Xxxxxxx Plan of Arrangement shall be paid by the party Party incurring such fees, costs or expenses. After the Effective Time, whether or not the Merger is consummated. (b) The Company Mountain shall pay to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv)pay, or Section 8.1(h); (ii) the Termination Fee if (A) after the date of this Agreement shall cause Xxxxxxx to pay, all outstanding invoices requiring payment by Xxxxxxx for services rendered and products purchased prior to the termination Effective Time, which were incurred in the ordinary course of this Agreementbusiness consistent with past practices or in connection with the Xxxxxxx Arrangement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months upon presentation of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement invoices to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregateMountain.

Expenses and Termination Fees. (a) Except as set forth otherwise provided in this Section 8.3Agreement, all fees fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby Plan of Arrangement shall be paid by the party Party incurring such fees, costs or expenses. In the event of termination of this Agreement by either the Company or Parent pursuant to Section 7.2, whether this Agreement will forthwith become void and have no further force or not effect, without any liability of the Merger is consummatedpart of Parent, the Company, or any of their respective Subsidiaries (or any of their respective shareholders, directors, officers, employees, agents, consultants or representatives), except as provided in this Section 7.3, Section 5.7(i), the last sentence of Section 5.9, Section 5.10 and Article 8, which shall survive any termination thereof, and provided further that neither Parent nor the Company shall be relieved or released from any liabilities arising out its fraud or intentional breach of this Agreement. (b) The For the purposes of this Agreement, "Company shall pay to ParentTermination Fee Event" means the termination of this Agreement: (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated by Parent pursuant to either Section 8.1(e)(i), 7.2(a)(iii)(A) (iiibut not including a termination by Parent pursuant to Section 7.2(a)(iii)(A) or (iv), or Section 8.1(hin circumstances where the Company Change in Recommendation resulted from the occurrence of a Parent Material Adverse Effect); (ii) by the Termination Fee if Company pursuant to Section 7.2(a)(iv)(B); (iii) by either Party pursuant to Section 7.2(a)(ii)(A) or Section 7.2(a)(ii)(C), but only if, in these termination events, (x) prior to such termination (in the case of Section 7.2(a)(ii)(A)) or prior to the Company Meeting (in the case of Section 7.2(a)(ii)(C)), a bona fide Acquisition Proposal for the Company shall have been made or publicly announced by any Person other than Parent and (y) within 12 months following the date of such termination, (A) after the date Company or one or more of its Subsidiaries enters into a definitive agreement in respect of an Acquisition Proposal which is later consummated, or (B) an Acquisition Proposal shall have been consummated; (for purposes of this Agreement Section 7.3(b)(iii), the term "Acquisition Proposal" shall have the meaning ascribed to such term in Section 1.1, except that a reference to "15%" in such definition shall be deemed to be a reference to "50%" and shall exclude any Acquisition Proposal that constitutes an Acquisition Proposal solely because of clause (a)(iii) of such definition, unless the Acquisition Proposal referred to in clause (y)(A) or (y)(B) above was made or publicly announced prior to the termination of this AgreementAgreement or the Company Meeting, as applicable, by any person makes a Company Takeover ProposalPerson other than Parent); or (iv) by Parent, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.17.2(a)(iii)(C). (c) If a Company Termination Fee Event occurs, the Company shall pay the Company Termination Fee to the Parent, by wire transfer of immediately available funds, as follows: (Ci) if the Minimum Tender Condition Company Termination Fee is not satisfied at the expiration of the Offer, (D) this Agreement is terminated payable pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or 7.3(b)(i), the Company enters into an agreement Termination Fee shall be payable within three (3) Business Days following such termination; (ii) if the Company Termination Fee is payable pursuant to consummate a Section 7.3(b)(ii) or Section 7.3(b)(iv) the Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to Termination Fee shall be payable substantially concurrently with such agreement, whether or not such consummation is within such 12-month periodtermination; andor (iii) if the Company Termination Fee if this Agreement is terminated payable pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) 7.3(b)(iii), the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) Termination Fee shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to payable concurrently upon the consummation of the relevant transaction. All fees due under Section 8.3(bAcquisition Proposal referred to therein. (d) Any Company Termination Fee payable pursuant to this Agreement shall be paid free and clear of and without deduction or withholding for, or on account of, any present or future Taxes, unless such deduction or withholding is required by wire transfer of same-day funds. Under no circumstances will Law. (e) The Company acknowledges that the Company Termination Fee constitutes liquidated damages and are a genuine pre-estimate of the damages which Parent will suffer or incur as a result of the event giving rise to such payment and the resultant termination of this Agreement and is not a penalty. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. For greater certainty, each Party agrees that, upon any termination of this Agreement under circumstances the Company Termination Fee is payable and is paid in full, the Parent shall be obligated precluded from any other remedy against the Company at Law or in equity or otherwise (including, without limitation, an order for specific performance), and shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of its Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates or their respective Representatives in connection with this Agreement or the transactions contemplated by this Agreement; provided, however, that the foregoing limitation shall not (i) apply in the event of fraud or intentional breach of this Agreement by the Company as set forth in Section 7.3(a), and (ii) prior to any such termination, preclude Parent from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements of the Company set forth in this Agreement, or otherwise obtain specific performance of any of such acts, covenants or agreements in accordance with Section 8.3. (f) The Company anticipates, and shall use reasonable endeavours to secure that, the Company Termination Fee is not and shall not be treated as consideration for a taxable supply for the purposes of value added tax or any other similar Tax. (g) If any such Company Termination Fee is consideration for a taxable supply in respect of which the Company is liable to pay fees pursuant or account for such value added tax or similar Tax then the amount of the Company Termination Fee shall be reduced, or be deemed to Section 8.3(b) in excess include value added tax or Tax, as applicable, to take account of $17,000,000 in the aggregateany such value added tax or Tax.

Expenses and Termination Fees. (a) Except as set forth otherwise provided in this Section 8.3Agreement, all fees fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby Plan of Arrangement shall be paid by the party Party incurring such fees, costs or expenses. In the event of termination of this Agreement by either the Company or Parent pursuant to Section 7.2, whether this Agreement will forthwith become void and have no further force or not effect, without any liability of the Merger is consummatedpart of Parent, the Company, or any of their respective Subsidiaries (or any of their respective shareholders, directors, officers, employees, agents, consultants or representatives), except as provided in this Section 7.3, Section 5.7(i), the last sentence of Section 5.9, Section 5.10 and Article 8, which shall survive any termination thereof, and provided further that neither Parent nor the Company shall be relieved or released from any liabilities arising out its fraud or intentional breach of this Agreement. (b) The For the purposes of this Agreement, "Company shall pay to ParentTermination Fee Event" means the termination of this Agreement: (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated by Parent pursuant to either Section 8.1(e)(i), 7.2(a)(iii)(A) (iiibut not including a termination by Parent pursuant to Section 7.2(a)(iii)(A) or (iv), or Section 8.1(hin circumstances where the Company Change in Recommendation resulted from the occurrence of a Parent Material Adverse Effect); (ii) by the Termination Fee if Company pursuant to Section 7.2(a)(iv)(B); (iii) by either Party pursuant to Section 7.2(a)(ii)(A) or Section 7.2(a)(ii)(C), but only if, in these termination events, (x) prior to such termination (in the case of Section 7.2(a)(ii)(A)) or prior to the Company Meeting (in the case of Section 7.2(a)(ii)(C)), a bona fide Acquisition Proposal for the Company shall have been made or publicly announced by any Person other than Parent and (y) within 12 months following the date of such termination, (A) after the date Company or one or more of its Subsidiaries enters into a definitive agreement in respect of an Acquisition Proposal which is later consummated, or (B) an Acquisition Proposal shall have been consummated; (for purposes of this Agreement Section 7.3(b)(iii), the term "Acquisition Proposal" shall have the meaning ascribed to such term in Section 1.1, except that a reference to "15%" in such definition shall be deemed to be a reference to "50%" and shall exclude any Acquisition Proposal that constitutes an Acquisition Proposal solely because of clause (a)(iii) of such definition, unless the Acquisition Proposal referred to in clause (y)(A) or (y)(B) above was made or publicly announced prior to the termination of this AgreementAgreement or the Company Meeting, as applicable, by any person makes a Company Takeover ProposalPerson other than Parent); or (iv) by Parent, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.17.2(a)(iii)(C). (c) If a Company Termination Fee Event occurs, the Company shall pay the Company Termination Fee to the Parent, by wire transfer of immediately available funds, as follows: (Ci) if the Minimum Tender Condition Company Termination Fee is not satisfied at the expiration of the Offer, (D) this Agreement is terminated payable pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or 7.3(b)(i), the Company enters into an agreement Termination Fee shall be payable within three (3) Business Days following such termination; (ii) if the Company Termination Fee is payable pursuant to consummate a Section 7.3(b)(ii) or Section 7.3(b)(iv) the Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to Termination Fee shall be payable substantially concurrently with such agreement, whether or not such consummation is within such 12-month periodtermination; andor (iii) if the Company Termination Fee if this Agreement is terminated payable pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) 7.3(b)(iii), the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) Termination Fee shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to payable concurrently upon the consummation of the relevant transaction. All fees due under Section 8.3(bAcquisition Proposal referred to therein. (d) Any Company Termination Fee payable pursuant to this Agreement shall be paid free and clear of and without deduction or withholding for, or on account of, any present or future Taxes, unless such deduction or withholding is required by wire transfer of same-day funds. Under no circumstances will Law. (e) The Company acknowledges that the Company Termination Fee constitutes liquidated damages and is a genuine pre-estimate of the damages which Parent will suffer or incur as a result of the event giving rise to such payment and the resultant termination of this Agreement and is not a penalty. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. For greater certainty, each Party agrees that, upon any termination of this Agreement under circumstances the Company Termination Fee is payable and is paid in full, the Parent shall be obligated precluded from any other remedy against the Company at Law or in equity or otherwise (including, without limitation, an order for specific performance), and shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of its Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates or their respective Representatives in connection with this Agreement or the transactions contemplated by this Agreement; provided, however, that the foregoing limitation shall not (i) apply in the event of fraud or intentional breach of this Agreement by the Company as set forth in Section 7.3(a), and (ii) prior to any such termination, preclude Parent from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements of the Company set forth in this Agreement, or otherwise obtain specific performance of any of such acts, covenants or agreements in accordance with Section 8.3. (f) The Company anticipates, and shall use reasonable endeavours to secure that, the Company Termination Fee is not and shall not be treated as consideration for a taxable supply for the purposes of value added tax or any other similar Tax. (g) If any such Company Termination Fee is consideration for a taxable supply in respect of which the Company is liable to pay fees pursuant or account for such value added tax or similar Tax then the amount of the Company Termination Fee shall be reduced, or be deemed to Section 8.3(b) in excess include value added tax or Tax, as applicable, to take account of $17,000,000 in the aggregateany such value added tax or Tax.

Expenses and Termination Fees. (a) Except as set forth in this Section 8.3Subject to Sections 7.3(b), 7.3(c) and 5.17, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The Company shall pay to Parent: In the event that (i) a fee of $17,000,000 (the "Termination Fee") if Acquiror shall terminate this Agreement is terminated pursuant to either Section 8.1(e)(i7.1(c)(ii), 7.1(c)(iii), 7.1(c)(iv) (iiiunless at the time of termination there is a permanent injunction or other court order preventing Target from convening the Target Stockholders Action), 7.1(e) or (iv7.1(f)(ii), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of Target shall terminate this Agreement and prior to the termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.17.1(g)(ii) or 7.1(h), then Target shall (Cx) promptly (but in no event later than five (5) business days after the Minimum Tender Condition is not satisfied at the expiration occurrence of the Offer, event giving Acquiror the right to so terminate this Agreement) pay to Acquiror the amount of $4,500,000 and (Dy) promptly (but in no event later than five (5) business days after receipt of invoices for same) reimburse Acquiror for all of its out of pocket expenses actually and reasonably incurred with respect to the transactions contemplated by this Agreement. (c) In the event that this Agreement is terminated pursuant to Section 8.1(d7.1(c)(i) and for any reason, and, in the event (E1) within 12 months of such termination a Company Acquisition any Takeover Proposal is consummated or (as defined in Section 7.3(f)) within twelve (12) months of the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if termination of this Agreement or (2) any Trigger Event is terminated pursuant to consummated (as defined in Section 8.1(e)(ii7.3(f)) and within 12 six (6) months of such the termination either of this Agreement, then Target shall (x) the Company Acquisition Proposal is consummated or promptly (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period but in no event later than five (c) Any fee due under Section 8.3(b)(i) shall be paid within two (25) business days after the consummation of such Takeover Proposal or Trigger Event) pay to Acquiror the amount of $4,500,000 and (y) promptly (but in no event later than five (5) business days after receipt of invoices for same) reimburse Acquiror for all of its out of pocket expenses incurred with respect to the transactions contemplated by this Agreement. (d) As used herein, a “Trigger Event” shall occur if any “person” (as that term is defined in Section 13(d) of the Exchange Act and the regulations promulgated thereunder) acquires securities representing 20% (or solely with respect to the application of Section 7.3(c), 30%) or more, or commences a tender or exchange offer following the successful consummation of which the offeror and its affiliate would beneficially own securities representing 20% (or solely with respect to the application of Section 7.3(c), 30%) or more, of the voting power of Target; provided that a Trigger Event shall not be deemed to occur with respect to bona fide equity or debt financings of the Company in which only existing stockholders (or their affiliated funds or partners) of Target as of the date of the termination of this Agreement. Any fee due under Agreement (“Existing Stockholders”) participate; provided further that any investment in Target by any person who is not an Existing Stockholder of Target during the six-month period specified in Section 8.3 (b)(ii7.3(c)(2) shall be paid at or prior to preclude the consummation use by Target of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 exception provided in the aggregateforegoing proviso.

Expenses and Termination Fees. (a) 8.4.1 Except as set forth in this Section 8.3otherwise provided herein, all fees fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby Plan of Arrangement shall be paid by the party Party incurring such fees, costs or expenses. 8.4.2 The Company shall pay the Acquiror (by wire transfer of immediately available funds) the sum of $350,000 (the “Termination Fee”) in accordance with Section 8.4.3 following the occurrence of the termination of this Agreement: (a) by the Acquiror pursuant to Section 9.2.1(c)(i) [Change in Recommendation], whether except where the Change in Recommendation which has led to the termination pursuant to Section 9.2.1(c)(i) was made solely because the Company Board, acting in good faith, determined that a change, effect, event or not occurrence had taken place that constituted a Material Adverse Effect on Acquiror and that, as a consequence, it would be inconsistent with the Merger is consummated.Company Board’s fiduciary obligations to continue to recommend that Company Securityholders vote in favour of the Arrangement; (b) The by the Acquiror pursuant to Section 9.2.1(c)(iv) [Breach of Non-Solicitation]; (c) by the Acquiror pursuant to Section 9.2.1(c)(vi) [Superior Proposal]; (d) by the Company pursuant to Section 9.2.1(d)(i) [Superior Proposal]; (e) by either Party pursuant to Section 9.2.1(b)(iii) [Company Shareholder Approval] if, in either case, prior to the earlier of the termination of this Agreement or the holding of the Company Meeting, a bona fide Acquisition Proposal, or the intention to make an Acquisition Proposal, with respect to the Company shall pay have been made to Parentthe Company or publicly announced by any person (other than Acquiror or any of its affiliates) and not withdrawn prior to the Company Meeting and within 12 months following the date of such termination: (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement announced Acquisition Proposal is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h);consummated by the Company; or (ii) the Termination Fee if (A) after the date Company and/or one or more of this Agreement and prior to the termination of this Agreementits subsidiaries enters into a definitive agreement in respect of, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Board approves or recommends, any Acquisition Proposal and which is subsequently consummated at any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreementtime thereafter; (each, whether a “Termination Fee Event”) 8.4.3 If a Termination Fee Event described in any of Sections 8.4.2(a) or not such consummation is within such 12-month period; and (iii) b), occurs, the Termination Fee if this Agreement is terminated pursuant shall be payable simultaneously by the Company to Section 8.1(e)(ii) and within 12 months the Acquiror with the occurrence of such termination either Termination Fee Event. If a Termination Event described in any of Sections 8.4.2(c) or (xd) occurs, the Termination Fee shall be payable by the Company Acquisition to the Acquiror upon approval of such Superior Proposal is consummated or (yby Company Securityholders, as applicable. If a Termination Fee Event described in Section 8.4.2(e) occurs, the Termination Fee shall be payable by the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid Acquiror within two (2) business days after following the closing of the applicable transaction referred to therein. 8.4.4 If the Company or any of its Representatives receives an Acquisition Proposal prior to or within the ninety (90) day period following the Outside Date, and such Acquisition Proposal subsequently closes, then the Company shall pay to the Company, to the extent that a Termination Fee has not already been paid by the Company relating thereto pursuant to Section 8.4.2, within two (2) business days following the closing of such transaction, the Termination Fee notwithstanding the termination of this Agreement. Any fee due This Section 8.4.4 survives the termination of this Agreement. 8.4.5 Each of the Parties acknowledges that the agreements contained in this Section 8.4 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. Each Party acknowledges that all of the payment amounts set out in this Section 8.4 are payments of liquidated damages which are a genuine pre-estimate of the damages which the Acquiror will suffer or incur as a result of the event giving rise to such payment and the resultant termination of this Agreement and are not penalties. The Company irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. For greater certainty, each Party agrees that, upon any termination of this Agreement under Section 8.3 (b)(ii) circumstances where the Acquiror is entitled to the Termination Fee and such Termination Fee is paid in full, the Acquiror shall be paid precluded from any other remedy against the Company at law or prior in equity or otherwise (including, without limitation, an order for specific performance), and shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the consummation Company or any of its subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby. 8.4.6 Nothing in this Section 8.4 shall relieve or have the effect of relieving the Company in any way from liability for damages incurred or suffered by the Acquiror as a result of an intentional or wilful breach of this Agreement. 8.4.7 Nothing in this Section 8.4 shall preclude the Acquiror from seeking injunctive relief to restrain any breach or threatened breach of the relevant transaction. All fees due under Section 8.3(b) covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreements, without the necessity of posting bond or security in connection therewith. 8.4.8 In no event shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) the Acquiror an amount in respect of the termination of this Agreement that is, in aggregate, in excess of $17,000,000 the Termination Fee and the Termination Fee shall, in any case, only be paid once by the aggregateCompany.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c), (d), (e) and (f) of this Section 8.3, whether or not the Merger is consummated, all fees costs and expenses Expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement (including the fees and expenses of its advisers, brokers, finders, agents, accountants, bankers and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedcosts and Expenses. (b) The In the event that the Company shall terminate this Agreement pursuant to Section 8.1(g), then prior to or substantially concurrently with such termination the Company shall pay by wire transfer of same-day funds to Parent:Parent a termination fee of $45,000,000 (the “Takeover Proposal Termination Fee”). (c) In the event that (i) a fee of $17,000,000 (the "Termination Fee") if Parent shall terminate this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii8.1(b)(ii) where the Change in Recommendation arises from an Intervening Event or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of Company or Parent shall terminate this Agreement pursuant to Section 8.1(f) and prior to the Company Shareholders Meeting the Company Board has made a Change in Recommendation related to an Intervening Event, then the Company shall, within five (5) Business Days of such termination, pay by wire transfer of same-day funds to Parent a termination fee of $87,500,000 (the “Intervening Event Termination Fee” and, together with the Takeover Proposal Termination Fee, the “Termination Fee”). (d) In the event that Parent shall terminate this AgreementAgreement pursuant to Section 8.1(b)(ii) where the Change in Recommendation arises from a Superior Proposal or Parent shall terminate this Agreement pursuant to Section 8.1(b)(iv) or (v), any person makes a then the Company shall, within five (5) Business Days of such termination, pay by wire transfer of same-day funds the Takeover ProposalProposal Termination Fee to Parent. (e) In the event that (i) (A) the Company or Parent shall terminate this Agreement pursuant to Section 8.1(f) (and no Change in Recommendation due to an Intervening Event has been made prior to the date of the Company Shareholders Meeting), or (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request Parent shall terminate this Agreement pursuant to Section 1.18.1(b)(iii), (Cii) prior to the Minimum Tender Condition is not satisfied at the expiration time of the OfferCompany Shareholder Approval not being received at a duly held meeting of the Company Shareholders called for that purpose, a bona fide Takeover Proposal with respect to the Company has been made directly to the Company Shareholders or shall have otherwise become publicly known and not withdrawn (D) unless such withdrawal is conditioned upon the failure to receive the Company Shareholder Approval in respect of the Merger and the transactions contemplated under this Agreement is terminated pursuant to Section 8.1(dAgreement) and (Eiii) within 12 months of such termination of this Agreement a definitive agreement is entered into by the Company Acquisition with respect to a Takeover Proposal or a Takeover Proposal is consummated consummated, the Company shall, on the earlier of the date such definitive agreement is entered into by the Company or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition date such Takeover Proposal is thereafter consummated that includes the person party consummated, pay to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid Parent by wire transfer of same-day funds. Under no circumstances will funds the Takeover Proposal Termination Fee; provided, however, that for the purpose of this Section 8.3(e), all references in the definition of Takeover Proposal to “10%” shall instead be deemed to refer to “a majority”. (f) In the event that (i) (A) Parent or the Company be obligated to pay fees shall terminate this Agreement pursuant to Section 8.1(e) or (B) Parent shall terminate this Agreement pursuant to Section 8.1(b)(i), and (ii) prior to the Outside Date (or in the case of termination pursuant to Section 8.1(b)(i), the date of termination), a bona fide Takeover Proposal with respect to the Company has been made directly to the Company Shareholders or shall have otherwise become publicly known and not withdrawn (unless such withdrawal is conditioned upon the failure to receive the Company Shareholder Approval in respect of the Merger and the transactions contemplated under this Agreement) and (iii) within 12 months of such termination of this Agreement a definitive agreement is entered into by the Company with respect to a Takeover Proposal or a Takeover Proposal is consummated, the Company shall, on the earlier of the date such definitive agreement is entered into by the Company or the date such Takeover Proposal is consummated, pay to Parent by wire transfer of same-day funds the Takeover Proposal Termination Fee; provided, however, that for the purpose of this Section 8.3(f), all references in the definition of Takeover Proposal to “10%” shall instead be deemed to refer to “a majority”. (g) The Company and Parent acknowledge and agree that the agreements contained in Sections 8.3(b), (c), (d), (e) and (f) are an integral part of the transactions contemplated by this Agreement, and that the Company’s payment of any Termination Fee does not constitute a penalty and that, without these agreements, Parent would not enter into this Agreement. Accordingly if the Company fails promptly to pay the amount due pursuant to Sections 8.3(b), (c), (d), (e) or (f), and, in order to obtain such payment, Parent commences a suit that results in a final judgment against the Company for the Termination Fee, the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in excess connection with such suit, together with interest on the amount of $17,000,000 the Termination Fee from the date such payment was required to be made until the date of payment at the prime rate of Citibank, N.A. (or its successor, if applicable), in effect on the aggregatedate such payment was required to be made.

Expenses and Termination Fees. (a) Except Mountain shall be entitled to the Termination Fee upon the occurrence of any of the following events (each an “Xxxxxxx Termination Fee Event”) which shall be paid by Xxxxxxx within the time specified in respect of each such Xxxxxxx Termination Fee Event: (i) this Agreement is terminated by Mountain pursuant to Section 8.2(c)(i) (Xxxxxxx Change in Recommendation) (but not including a termination by Mountain pursuant to Section 8.2(c)(i) in circumstances where the Xxxxxxx Change in Recommendation resulted from the occurrence of a Mountain Material Adverse Effect) or Section 8.2(c)(vi) (Superior Proposal Notice)) in which case the Termination Fee shall be paid on the first Business Day following such termination; (ii) this Agreement is terminated by Xxxxxxx pursuant to Section 8.2(d)(ii) (to enter into a Superior Proposal), in which case the Termination Fee shall be paid concurrent with such termination; or (iii) this Agreement is terminated by Mountain pursuant to Section 8.2(c)(iv) (Breach of Non Solicitation) or Section 8.2(c)(v) (Xxxxxxx Meeting has not occurred), or by either Party pursuant to Section 8.2(b)(i) (Outside Date) or Section 8.2(b)(iv) (No Xxxxxxx Shareholder Approval) or by Xxxxxxx pursuant to Section 8.2(b)(i) (Effective Time not prior to the Outside Date) (in circumstances where Mountain would also be entitled to terminate this Agreement pursuant to Section 8.2(c)(iv), Section 8.2(c)(v), Section 8.2(b)(i) or Section 8.2(b)(iv)), but only if, in the case of this Section 8.3(a)(iii), prior to the termination of this Agreement, an Acquisition Proposal shall have been made to Xxxxxxx and publicly announced, or an Acquisition Proposal with respect to Xxxxxxx is publicly announced or any Person shall have publicly announced the intention to make an Acquisition Proposal with respect to Xxxxxxx (other than by Mountain), and if within nine months following the date of such termination: (A) an Acquisition Proposal (whether or not it is the Acquisition Proposal referred to above) is consummated by Xxxxxxx; or (B) Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of, or the Xxxxxxx Board approves or recommends, an Acquisition Proposal and at any time thereafter (whether or not within nine months following the date of termination of this Agreement), such Acquisition Proposal is consummated; in which case the Termination Fee shall be payable within two Business Days following the closing of the applicable transaction referred to therein. For purposes of this Section 8.3(a)(iii), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%” (b) Xxxxxxx shall be entitled to the Termination Fee upon the occurrence of any of the following events (each a “Mountain Termination Fee Event”) which shall be paid by Mountain within the time specified in respect of each such Mountain Termination Fee Event: (i) this Agreement is terminated by Xxxxxxx pursuant to Section 8.2(d)(i) (Mountain Change in Recommendation) (but not including a termination by Xxxxxxx pursuant to Section 8.2(d)(i) in circumstances where the Mountain Change in Recommendation resulted from the occurrence of a Xxxxxxx Material Adverse Effect) or Section 8.2(d)(v) (Superior Proposal Notice) in which case the Termination Fee shall be paid on the first Business Day following such termination; (ii) this Agreement is terminated by Mountain pursuant to Section 8.2(c)(ii) (to enter into a Superior Proposal), in which case the Termination Fee shall be paid concurrent with such termination; or (iii) this Agreement is terminated by Xxxxxxx pursuant to Section 8.2(d)(vi) (Breach of Non Solicitation) or Section 8.2(d)(iv) (Mountain Meeting has not occurred), or by either Party pursuant to Section 8.2(b)(i) (Outside Date) or Section 8.2(b)(iii) (No Mountain Shareholder Approval) or by Mountain pursuant to Section 8.2(b)(i) (Effective Time not prior to the Outside Date) (in circumstances where Xxxxxxx would also be entitled to terminate this Agreement pursuant to Section 8.2(d)(vi), Section 8.2(d)(v), Section 8.2(b)(i) or Section 8.2(b)(iv)), but only if, in the case of this Section 8.3(b)(iii), prior to the termination of this Agreement, an Acquisition Proposal shall have been made to Mountain and publicly announced, or an Acquisition Proposal with respect to Mountain is publicly announced or any Person shall have publicly announced the intention to make an Acquisition Proposal with respect to Mountain (other than by Xxxxxxx), and if within nine months following the date of such termination: (A) an Acquisition Proposal (whether or not it is the Acquisition Proposal referred to above) is consummated by Mountain; or (B) Mountain and/or one or more of its subsidiaries enters into a definitive agreement in respect of, or the Mountain Board approves or recommends, an Acquisition Proposal and at any time thereafter (whether or not within nine months following the date of termination of this Agreement), such Acquisition Proposal is consummated; in which case the Termination Fee shall be payable within two Business Days following the closing of the applicable transaction referred to therein. For purposes of this Section 8.3(b)(iii), the term “Acquisition Proposal” shall have the meaning ascribed thereto in Section 1.1, except that the references to “20%” therein shall be deemed to be references to “50%”. (c) The Termination Fee shall be payable by the Party required to pay such fee by wire transfer in immediately available funds to an account specified by the Party to whom such fee is payable. (d) Each of the Parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated in this Agreement and that, without those agreements, the Parties would not enter into this Agreement. The Parties further acknowledge and agree that the Termination Fee is a payment of liquidated monetary damages which are a genuine pre-estimate of the damages which the Party entitled to receive such fee will suffer or incur as a result of the cancellation and termination of all rights and obligations with respect to the direct or indirect acquisition of Xxxxxxx by Mountain in the circumstances in which the Termination Fee is payable, that such payment is not for lost profits or a penalty, and that no Party shall take any position inconsistent with the foregoing. Each of the Parties irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. Each of the Parties hereby acknowledges and agrees that, upon any termination of this Agreement as permitted under Section 8.2 under circumstances where a Party is entitled to the Termination Fee and such Termination Fee is paid in full to such Party, the Party to whom such fee has been paid shall be precluded from any other remedy against the other Party at law or in equity or otherwise and in any such case it shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Party who has paid such fee or any of its subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates in connection with this Agreement or the transactions contemplated hereby. (e) Subject to the last sentence of Section 8.3(d), nothing in this Section 8.3 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreement, and any requirement for securing or posting of any bond in connection with the obtaining of any such injunction or specific performance is hereby being waived. Each of the Parties hereby acknowledges that a Party shall be entitled to elect to be paid a Termination Fee under this Section 8.38.3 or pursue its remedies contemplated in this Subsection 8.3(e) and Section 9.3. (f) Except as otherwise provided herein, all fees fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby Xxxxxxx Plan of Arrangement shall be paid by the party Party incurring such fees, costs or expenses. After the Effective Time, whether or not the Merger is consummated. (b) The Company Mountain shall pay to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv)pay, or Section 8.1(h); (ii) the Termination Fee if (A) after the date of this Agreement shall cause Xxxxxxx to pay, all outstanding invoices requiring payment by Xxxxxxx for services rendered and products purchased prior to the termination Effective Time, which were incurred in the ordinary course of this Agreementbusiness consistent with past practices or in connection with the Xxxxxxx Arrangement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months upon presentation of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement invoices to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregateMountain.

Expenses and Termination Fees. (a) Except as set forth in otherwise provided by this Section 8.3Agreement, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement, including filing fees and the fees and expenses of advisors, accountants, legal counsel and financial printers, shall be paid by the party incurring such expenses, whether cost or not the Merger is consummatedexpense. (b) The Company shall pay to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if If this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) by Genovo pursuant to Section 7.1(c)(i) or by Targeted pursuant to Section 7.1(d)(iii) and a Superior Proposal is publicly announced at any time within six months after the date of such termination and completed within twelve months after the date of this Agreement and prior or (B) by Targeted pursuant to Section 7.1(b)(iv) or (v) or 7.1(d)(i) or (ii) (each such case of termination, a "Trigger Event"), Genovo shall pay to ------------- Targeted (by wire transfer of immediately available funds not later than the date of termination of this Agreement) an amount equal to $1.5 million; provided that, any person makes a Company Takeover Proposal, (B) in the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request case of termination by Targeted pursuant to Section 1.17.1(d)(iii), (C) the Minimum Tender Condition is Targeted shall not satisfied at the expiration be in breach of the Offerany of its representations, (D) warranties, covenants or agreements. Receipt by Targeted of such payment shall constitute conclusive evidence that this Agreement is has been validly terminated pursuant to Section 8.1(d) and (E) within 12 months upon payment of such termination a Company Acquisition Proposal is consummated amount Genovo shall be fully released and discharged from any liability or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether obligation resulting from or not such consummation is within such 12-month period; and (iii) the Termination Fee if under this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month periodAgreement. (c) Any fee due under If Genovo shall terminate this Agreement pursuant to Section 8.3(b)(i7.1(c)(ii) or (iii), Targeted shall be paid within two pay to Genovo (2) business days after by wire transfer of immediately available funds not later than the date of termination of this Agreement) an amount equal to $1.5 million. Any fee due under Section 8.3 (b)(ii) Receipt by Genovo of such payment shall constitute conclusive evidence that this Agreement has been validly terminated and upon payment of such amount Targeted shall be paid at fully released and discharged from any liability or prior to obligation resulting from or under this Agreement. (d) Genovo and Targeted acknowledge that the consummation agreements contained in subsections(b) and (c) of this Section 7.3 are an integral part of the relevant transactiontransactions contemplated by this Agreement, and that, without these agreements, Targeted, Merger Sub and Genovo, as the case may be, would not have entered into this Agreement. All fees Accordingly, if Genovo fails to promptly pay the amount due under Section 8.3(bpursuant to subsection (b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated or Targeted fails to pay fees promptly the amount due pursuant to subsection (c) and, in order to obtain such payment, Targeted or Genovo, as the case may be, commences a suit that results in a judgment against Genovo or Targeted for the fee set forth in this Section 8.3(b7.3, Genovo shall pay to Targeted, or Targeted shall pay to Genovo, as the case may be, such prevailing party's costs and expenses (including attorney's fees) in excess connection with such suit, together with interest from the date of $17,000,000 termination of this Agreement on the amount owed. Such interest shall accrue at the prime rate of Citibank, N.A. in the aggregateeffect from time to time during such period plus two percent.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c) and (d) of this Section 8.37.3, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expensesexpense, whether or not except that expenses incurred in connection with printing the Proxy Materials and the Registration Statement, registration and filing fees incurred in connection with the Registration Statement, the Proxy Materials and the listing of additional shares pursuant to Section 6.1(g) and qualification and filing fees associated with efforts to comply with applicable state securities laws in connection with the Merger is consummatedshall be shared equally by Company and Parent. (b) The Company shall pay to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if If Parent terminates this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii7.1(c)(iii) or (iv)as a result of the failure by Company, or any of its stockholders who are parties to the Company Stockholder Agreement, or any of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 8.1(h4.3, or if any Company Takeover Proposal or Trigger Event (where Company is the Issuer) is consummated (as defined in Section 7.3(g); ) by or with any person (iior any affiliate of any person) the Termination Fee if (A) after the date that made a Company Takeover Proposal prior to termination of this Agreement and or that caused a Trigger Event (where Company is the Issuer) prior to such termination, then Company shall promptly reimburse Parent for all of the termination documented out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of this Agreementits advisors, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1accountants and legal counsel), (C) and, in addition to any other remedies Parent may have, Company shall promptly pay to Parent the Minimum Tender Condition is not satisfied at the expiration sum of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period$2,000,000. (c) Any fee due under If Company terminates this Agreement pursuant to Section 8.3(b)(i7.1(d)(iii) shall be paid within two as a result of the failure by Parent, or any of its stockholders who are parties to the Parent Stockholder Agreement, or any of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 4.4, or if any Parent Takeover Proposal or Trigger Event (2where Parent is the Issuer) business days after the is consummated (as defined in Section 7.3(g)) by or with any person (or any affiliate of any person) that made a Parent Takeover Proposal prior to termination of this Agreement. Any fee due under Section 8.3 Agreement or that caused a Trigger Event (b)(iiwhere Parent is the Issuer) shall be paid at or prior to the consummation such termination, then Parent shall promptly reimburse Company for all of the relevant transaction. All out-of-pocket costs and expenses incurred by Company in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees due under Section 8.3(band expenses of its advisors, accountants and legal counsel), and, in addition to any other remedies Company may have, Parent shall promptly pay to Company the sum of $2,000,000. (d) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees If Parent terminates this Agreement pursuant to Section 8.3(b7.1(c)(i) under circumstances not described in excess Section 7.3(b), then Company shall promptly reimburse Parent for all of $17,000,000 the documented out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel). If Company terminates this Agreement pursuant to Section 7.1(d)(i) under circumstances not described in Section 7.3(c), then Parent shall promptly reimburse Company for all of the out-of-pocket costs and expenses incurred by Company in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel). (e) As used herein, a “Trigger Event” shall occur if any Person (as that term is defined in Section 13(d) of the Exchange Act and the regulations promulgated thereunder) acquires securities representing 15% with respect to Company or 50% with respect to Parent, or more, or commences a tender or exchange offer, open market purchase program or other publicly announced initiative following the successful consummation of which the offeror and its affiliate would beneficially own securities representing 15% with respect to Company or 50% with respect to Parent, or more, of the voting power of such issuer of the securities (“Issuer”); provided, however, a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing 15% with respect to Company or 50% with respect to Parent, or more of Issuer if such Person has not acquired such securities with the purpose or with the effect of changing or influencing the control of Issuer, or in connection with or as a participant in any transaction having such purpose or effect, including without limitation in connection with such Person (i) making any public announcement with respect to the voting of such shares at any meeting to consider any merger, consolidation, sale of substantial assets or other business combination or extraordinary transaction involving Issuer; (ii) making, or in any way participating in, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any voting securities of Issuer (including, without limitation, any such solicitation subject to Rule 14a-11 under the Exchange Act) or seeking to advise or influence any Person with respect to the voting of any voting securities of Issuer, directly or indirectly, relating to a merger or other business combination involving Issuer or the sale or transfer of a significant portion of assets (excluding the sale or disposition of assets in the aggregateordinary course of business) of Issuer; (iii) forming, joining or in any way participating in any “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of Issuer, directly or indirectly, relating to a merger or other business combination involving Issuer or the sale or transfer of a significant portion of assets (excluding the sale or disposition of assets in the ordinary course of business) of Issuer; or (iv) otherwise acting, alone or in concert with others, to seek control of Issuer or to seek to control or influence the management or policies of Issuer. (f) For purposes of this Agreement (i) “Company Takeover Proposal” means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or any of its subsidiaries or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company or any of its subsidiaries, other than the transactions contemplated by this Agreement; and (ii) “Parent Takeover Proposal” means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Parent of any of its subsidiaries consisting in the acquisition of 50% or more of the outstanding shares of capital stock of Parent, or a significant portion of the assets of Parent, other than the transactions contemplated by this Agreement.

Expenses and Termination Fees. (a) Except as set forth otherwise provided in this Section 8.3Agreement, all fees each party shall pay its own expenses incident to preparing for, entering into and expenses incurred in connection with carrying out this Agreement and the transactions contemplated hereby shall be paid by consummation of the party incurring such expensesTransactions, whether or not the Merger is shall be consummated. (b) The Company shall pay to Parent: If (i) a fee of $17,000,000 (the "Termination Fee") if Parent terminates this Agreement is terminated pursuant to either Section 8.1(e)(i), 8.1(c)(2) (iii) or (ivCompany Change of Recommendation), or Section 8.1(h); (ii) the Company terminates this Agreement pursuant to Section 8.1(d)(1) (Company Superior Proposal), then the Company shall pay or cause to be paid to Parent the Company Termination Fee if in cash by wire transfer of immediately available funds to an account designated by Parent. If the fee shall be payable pursuant to clause (Ai) of the immediately preceding sentence, the fee shall be paid no later than three (3) Business Days after the date notice of this Agreement and prior to the termination of this Agreement, any person makes a and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If (i) the Company Takeover terminates this Agreement pursuant to Section 8.1(d)(2) (Parent Change of Recommendation) or (ii) Parent terminates this Agreement pursuant to Section 8.1(c)(1) (Parent Superior Proposal) then Parent shall pay or cause to be paid to Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company. If the fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three (3) Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (d) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Shareholder Approval) or (B) Parent or the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request terminates this Agreement pursuant to Section 1.18.1(b)(ii) (End Date) or (C) Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or disclosed or otherwise communicated to the Company Board prior to the Company Shareholders Meeting and (iii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal or consummates any transaction meeting the parameters of a Company Competing Proposal, then the Company shall pay or cause to be paid to Parent the Company Termination Fee (less any amounts previously paid by the Company to Parent in accordance with Section 8.3(f)), in cash by wire transfer of immediately available funds to an account designated by Parent, on the earliest date of when such definitive agreement is executed or such transaction is consummated. For purposes of this Section 8.3(d), any reference in the definition of Company Competing Proposal to “twenty percent (20%)” shall be deemed to be a reference to “more than sixty percent (60%).” (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) or (B) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (End Date) or (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) Company terminates this Agreement is terminated pursuant to Section 8.1(d8.1(b)(iii) (Parent Terminable Breach) and (Eii) within 12 months on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or disclosed or otherwise communicated to the Parent Board prior to the Parent Stockholders Meeting and (iii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal or consummates any transaction meeting the parameters of a Parent Competing Proposal, then Parent shall pay or cause to be paid to the Company Acquisition the Parent Termination Fee (less any amounts previously paid by Parent to the Company in accordance with Section 8.3(g)), in cash by wire transfer of immediately available funds to an account designated by the Company, on the earliest date of when such definitive agreement is executed or such transaction is consummated. For purposes of this Section 8.3(e), any reference in the definition of Parent Competing Proposal is consummated to “twenty percent (20%)” shall be deemed to be a reference to “more than sixty percent (60%).” (f) Without limiting any obligation of the Company to pay the Company Termination Fee if and when it becomes due and payable pursuant to Section 8.3(d), if Parent or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if terminates this Agreement is terminated pursuant to Section 8.1(e)(ii8.1(b)(iv)(A) and within 12 months of such termination either (x) Failure to Obtain Company Shareholder Approval), then the Company Acquisition Proposal is consummated shall pay or (y) the Company enters into an agreement cause to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid to Parent the amount of the Parent Expenses, in cash by wire transfer of immediately available funds to an account designated by Parent within two (2) business days after Business Days of such termination. (g) Without limiting any obligation of Parent to pay the termination of Parent Termination Fee if and when it becomes due and payable pursuant to Section 8.3(e), if Parent or the Company terminates this Agreement. Any fee due under Agreement pursuant to Section 8.3 8.1(b)(iv)(B) (b)(ii) Failure to Obtain Parent Stockholder Approval), then Parent shall pay or cause to be paid at or prior to the consummation Company the amount of the relevant transaction. All fees due under Section 8.3(b) shall be paid Company Expenses, in cash by wire transfer of same-day funds. Under no circumstances will immediately available funds to an account designated by the Company be obligated within two (2) Business Days of such termination. (h) In the event that a terminating party has the right to pay fees terminate pursuant to multiple provisions of Section 8.3(b8.1, such terminating party may elect which provision pursuant to which it is terminating this Agreement. The parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the parties would not enter into this Agreement. If a party fails to promptly pay the amount due by it pursuant to this Section 8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, the other party commences a Proceeding that results in judgment for such party for such amount, the defaulting party shall pay the other party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in excess connection with such Proceeding. The parties agree that the monetary remedies set forth in Section 8.1(d) and this Section 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of $17,000,000 (i) the Company and its Subsidiaries against Parent and its Subsidiaries and any of their respective former, current or future directors, officers, stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the aggregatecase of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent shall be liable for damages for such intentional and knowing fraud or Willful and Material Breach), and upon payment of such amount, none of Parent and its Subsidiaries or any of their respective former, current or future directors, officers, general or limited partners, stockholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and its Subsidiaries against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional and knowing fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional and knowing fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Expenses and Termination Fees. (a) Except as set forth in this Section 8.3Subject to Sections 8.03(b) through 8.03(g), whether or -------------------------------- not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement Agreement, any related agreements and documents and the transactions contemplated hereby and thereby (including the fees and expenses of advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The In the event that this Agreement is terminated by Parent pursuant to Section 8.01(c)(ii) or Section 8.01(g) or by Company ------------------- --------------- pursuant to Section 8.01(h), then Company shall pay to Parent the sum --------------- of two hundred twenty five million dollars ($225,000,000) upon termination of this Agreement by Company pursuant to Section 8.01(h) or --------------- within five business days after termination of this Agreement by Parent pursuant to Section 8.01(c)(ii) or Section 8.01(g). The payment ------------------- --------------- referred to in this Section 8.03(b) shall be made by wire transfer of --------------- same-day funds to an account specified by Parent:. (c) In the event that (i) a fee bona fide offer by a third party (other than Parent or an affiliate of $17,000,000 Parent) for a Specified Company Takeover Transaction (as defined below) becomes known publicly or becomes known to Company stockholders generally prior to the "Termination Fee") if date on which a vote of Company stockholders on the proposal to adopt this Agreement is terminated pursuant taken by the Company stockholders, and (ii) such offer has not been definitively withdrawn at least seven (7) days prior to either Section 8.1(e)(i)the date on which a vote of Company stockholders on the proposal to adopt this Agreement is taken by the Company stockholders, and (iii) or prior to the time that a vote of Company stockholders on the proposal to adopt this Agreement is taken by the Company stockholders, no Parent Material Adverse Effect has occurred and no Parent Material Adverse Effect will, solely with the passage of time, imminently occur, and (iv) this Agreement is validly terminated by Parent pursuant to Section ------- 8.01(e)(ii) or by Company pursuant to Section 8.01(f)(ii), then Company ----------- ------------------- shall pay to Parent the sum of fifteen million dollars ($15,000,000) upon termination of this Agreement by Company or within five business days after termination of this Agreement by Parent. The payment referred to in this Section 8.1(h);8.03(c) shall be made by wire transfer of --------------- same-day funds to an account specified by Parent. (d) In the event that (i) a bona fide offer by a third party (other than Parent or an affiliate of Parent) for a Specified Company Takeover Transaction becomes known publicly or becomes known to Company stockholders generally, and (ii) this Agreement is validly terminated by Company pursuant to Section 8.01(b), and (iii) the Termination Fee if offer referred to --------------- in clause "(Ai)" of this Section 8.03(d) after is pending at the time this --------------- Agreement is terminated by Company pursuant to Section 8.01(b), and --------------- (iv) the failure of the Merger to occur on or before the date referred to in Section 8.01(b) is not attributable to a material breach of this --------------- Agreement by Parent or to any challenge to, or any investigation or review of, the Merger by any Governmental Entity, and (v) prior to the termination of this Agreement, any person makes a Agreement by Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.18.01(b), (C) --------------- no Parent Material Adverse Effect has occurred and no Parent Material Adverse Effect will, solely with the Minimum Tender Condition is not satisfied at the expiration passage of the Offertime, (D) this Agreement is terminated pursuant to Section 8.1(d) imminently occur, and (Evi) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement prior to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after the termination of this Agreement by Company pursuant to Section 8.01(b) the Company Stockholders Meeting shall not have been --------------- held and no vote of Company stockholders shall have been taken on the proposal to adopt this Agreement, then Company shall pay to Parent the sum of fifteen million dollars ($15,000,000) upon termination of this Agreement by Company pursuant to Section 8.01(b). Any fee due under The --------------- payment referred to in this Section 8.3 (b)(ii8.03(d) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid made by wire --------------- transfer of same-day funds. Under no circumstances will funds to an account specified by Parent. (e) In the Company be obligated event that (x) all of the conditions referred to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregate.clauses "(i)," "(ii)," "(iii)" and "

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c) and (d) of this Section 8.37.3 and Section 6.3(o), whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The Company shall pay to Parent: In the event that (i) Parent shall terminate this Agreement pursuant to Section 7.1(a)(v), (ii) either Parent or Company shall terminate this Agreement pursuant to Section 7.1(a)(vi)(B) following a fee failure of $17,000,000 the stockholders of Company to approve this Agreement and, prior to the time of the meeting of Company's stockholders, there shall have been (A) a Trigger Event with respect to Company or (B) a Takeover Proposal with respect to Company which shall not have been (x) rejected by Company with delivery of a Reaffirmation to Parent and (y) withdrawn by the third party, (iii) Parent shall terminate this Agreement pursuant to Section 7.1(a)(iii)(B)(C) or (D), or (iv) Company shall terminate this Agreement pursuant to Section 7.1(a)(iv)(B), then Company shall promptly, but in no event later than fifteen business days after such termination, pay to Parent 3% of the value of Parent Common Stock that would have been issued in the Merger as of the date of termination of this Agreement in cash (the "Termination Fee"); such Termination Fee to be determined by the following formula: Termination Fee = ((A x B) x C) x 3%; where A equals the sum of Company Capital Stock outstanding as of the date of the termination, plus all shares of Company Capital Stock subject to Company Options outstanding as of the date of the termination, plus Company Convertible Securities outstanding as of the date of termination, if this Agreement is terminated pursuant any; B equals the Exchange Ratio and C equals the average of the closing prices of Parent Common Stock for the twenty (20) days ending one day prior to either the termination date; provided, however, that with respect to Section 8.1(e)(i7.3(b)(ii)(A) and Section 7.3(b)(iii)(A), a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing thirty percent (30%) or more of Company if such Person has acquired such securities not with the purpose nor with the effect of changing or influencing the control of Company, nor in connection with or as a participant in any transaction having such purpose or effect, including without limitation not in connection with such Person (i) making any public announcement with respect to the voting of such shares at any meeting to consider any merger, consolidation, sale of substantial assets or other business combination or extraordinary transaction involving Company, (ii) making, or in any way participating in, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any voting securities of Company (including, without limitation, any such solicitation subject to Rule 14a-11 under the Exchange Act) or seeking to advise or influence any Person with respect to the voting of any voting securities of Company, (iii) forming, joining or in any way participating in any "group" within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of Company or (iv)) otherwise acting, alone or Section 8.1(h); (ii) in concert with others, to seek control of Company or to seek to control or influence the Termination Fee if (A) after the date management or policies of this Agreement and prior to the termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period. (c) Any fee due under Section 8.3(b)(i) In the event that Parent shall be paid within two (2) business days after the termination of terminate this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees Agreement pursuant to Section 8.3(b7.1(a)(iii)(A), Company shall promptly reimburse Parent for all of the actual, documented, reasonable out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its outside advisors, outside accountants and outside legal counsel). (d) In the event that Company shall terminate this Agreement pursuant to Section 7.1(a)(iv)(A), Parent shall promptly reimburse Company for all of the actual, documented and reasonable out-of-pocket costs and expenses incurred by Company in excess of $17,000,000 in connection with this Agreement and the aggregate.transactions contemplated hereby (including without

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c) and (d) of this Section 8.37.3 and Section 6.3(o), whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The Company shall pay to Parent: In the event that (i) Parent shall terminate this Agreement pursuant to Section 7.1(a)(v), (ii) either Parent or Company shall terminate this Agreement pursuant to Section 7.1(a)(vi)(B) following a fee failure of $17,000,000 the stockholders of Company to approve this Agreement and, prior to the time of the meeting of Company's stockholders, there shall have been (A) a Trigger Event with respect to Company or (B) a Takeover Proposal with respect to Company which shall not have been (x) rejected by Company with delivery of a Reaffirmation to Parent and (y) withdrawn by the third party, (iii) Parent shall terminate this Agreement pursuant to Section 7.1(a)(iii)(B)(C) or (D), or (iv) Company shall terminate this Agreement pursuant to Section 7.1(a)(iv)(B), then Company shall promptly, but in no event later than fifteen business days after such termination, pay to Parent 3% of the value of Parent Common Stock that would have been issued in the Merger as of the date of termination of this Agreement in cash (the "Termination Fee"); such Termination Fee to be determined --------------- by the following formula: Termination Fee = ((A x B) x C) x 3%; where A equals the sum of Company Capital Stock outstanding as of the date of the termination, plus all shares of Company Capital Stock subject to Company Options outstanding as of the date of the termination, plus Company Convertible Securities outstanding as of the date of termination, if this Agreement is terminated pursuant any; B equals the Exchange Ratio and C equals the average of the closing prices of Parent Common Stock for the twenty (20) days ending one day prior to either the termination date; provided, -------- however, that with respect to Section 8.1(e)(i7.3(b)(ii)(A) and Section 7.3(b)(iii)(A), ------- a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing thirty percent (30%) or more of Company if such Person has acquired such securities not with the purpose nor with the effect of changing or influencing the control of Company, nor in connection with or as a participant in any transaction having such purpose or effect, including without limitation not in connection with such Person (i) making any public announcement with respect to the voting of such shares at any meeting to consider any merger, consolidation, sale of substantial assets or other business combination or extraordinary transaction involving Company, (ii) making, or in any way participating in, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any voting securities of Company (including, without limitation, any such solicitation subject to Rule 14a-11 under the Exchange Act) or seeking to advise or influence any Person with respect to the voting of any voting securities of Company, (iii) forming, joining or in any way participating in any "group" within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of Company or (iv)) otherwise acting, alone or Section 8.1(h); (ii) in concert with others, to seek control of Company or to seek to control or influence the Termination Fee if (A) after the date management or policies of this Agreement and prior to the termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period. (c) Any fee due under Section 8.3(b)(i) In the event that Parent shall be paid within two (2) business days after the termination of terminate this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees Agreement pursuant to Section 8.3(b7.1(a)(iii)(A), Company shall promptly reimburse Parent for all of the actual, documented, reasonable out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its outside advisors, outside accountants and outside legal counsel). (d) In the event that Company shall terminate this Agreement pursuant to Section 7.1(a)(iv)(A), Parent shall promptly reimburse Company for all of the actual, documented and reasonable out-of-pocket costs and expenses incurred by Company in excess connection with this Agreement and the transactions contemplated hereby (including without limitation the fees and expenses of $17,000,000 its outside advisors, outside accountants and outside legal counsel). (e) In the event that either Company's or Parent's accountants determine that their respective client is not poolable, and such non-poolable party shall terminate this Agreement or otherwise determine not to close the transactions contemplated thereby, such non-poolable party shall promptly reimburse the other party for all of the actual, documented and reasonable out- of-pocket costs and expenses incurred by such party in connection with this Agreement and the aggregatetransactions contemplated hereby (including without limitation the fees and expenses of its outside advisors, outside accountants and outside legal counsel).

Expenses and Termination Fees. (a) Except as set forth in In the event this Agreement is terminated by the Company or Parent pursuant to (i) Section 8.1(b)(iii) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, all fees and expenses incurred in connection with this Agreement then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv) and the transactions contemplated hereby Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall be paid pay the Company the Company Expenses, in each case, within two (2) Business Days of such termination by wire transfer of immediately available funds to one or more accounts designated by the party incurring such expensesCompany or Parent, whether or not the Merger is consummatedas applicable. (b) The Company shall pay to ParentIn the event that: (i) a fee of $17,000,000 (the "Termination Fee"1) if this This Agreement is terminated (I) by the Company or Parent pursuant to either Section 8.1(e)(i8.1(b)(i) if, at the time of such termination, Parent would have been entitled to terminate this Agreement pursuant to Section 8.1(d)(i) or Section 8.1(d)(ii), (iiiII) by the Company or Parent pursuant to Section 8.1(b)(iii) or (ivIII) by Parent pursuant to Section 8.1(d)(ii), or Section 8.1(h); (ii2) the Termination Fee if (A) Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the Company Meeting, and such Company Alternative Proposal has not been publicly withdrawn at least five (5) days prior to the date of the Company Meeting (or prior to the termination of this AgreementAgreement if there has been no Company Meeting), any person makes and (3) within twelve (12) months of such termination, the Company shall have entered into a definitive agreement with respect to a Company Takeover Proposal, Alternative Proposal (B) the Offer remains open until the scheduled expiration date immediately following the date such which Company Takeover Alternative Proposal is made thereafter consummated), or a Company Alternative Proposal is consummated (in each case whether or such later date as not the Offer may Company Alternative Proposal was the same Company Alternative Proposal referred to in clause (2)); provided that, for purposes of this clause (3), the references to “20%” in the definition of “Company Alternative Proposal” shall be extended at the Company's request deemed to be references to “more than 50%”; or (ii) Parent shall have terminated this Agreement pursuant to Section 1.18.1(d)(i); then, the Company shall, (I) in the case of clause (i) above, upon the earlier of the execution of a definitive agreement with respect to a Company Alternative Proposal or the consummation of a Company Alternative Proposal, pay Parent (or one or more of its designees) the Company Termination Fee less any amount previously paid by Company pursuant to Section 8.3(a); and (II) in the case of clause (ii) above, within two (2) Business Days of such termination, pay Parent (or one or more of its designees) the Company Termination Fee, in each case by wire transfer of immediately available funds to one or more accounts designated by Parent; it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. Following receipt by Parent (or one or more of its designees) of the Company Termination Fee in accordance with this Section 8.3(b), the Company shall have no further liability with respect to this Agreement or the transactions contemplated herein to Parent or its Subsidiaries or Affiliates or any other Person, other than in respect of willful and intentional breach of this Agreement or Fraud. (Cc) In the Minimum Tender Condition is not satisfied at the expiration of the Offer, event that: (Di) (1) this Agreement is terminated (I) by the Company or Parent pursuant to Section 8.1(d8.1(b)(i) if, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(ii), (II) by the Company or Parent pursuant to Section 8.1(b)(iv) or (III) by the Company pursuant to Section 8.1(c)(ii), (2) Parent or any other Person shall have publicly disclosed or announced a Parent Alternative Proposal made on or after the date of this Agreement but prior to the Parent Meeting, and such Parent Alternative Proposal has not been publicly withdrawn at least five (5) days prior to the date of the Parent Meeting (or prior to the termination of this Agreement if there has been no Parent Meeting), and (E3) within 12 twelve (12) months of such termination termination, Parent shall have entered into a Company Acquisition definitive agreement with respect to a Parent Alternative Proposal (which Parent Alternative Proposal is thereafter consummated), or a Parent Alternative Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, (in each case whether or not such consummation is within such 12-month periodthe Parent Alternative Proposal was the same Parent Alternative Proposal referred to in clause (2)); andprovided that, for purposes of this clause (3), the references to “20%” in the definition of “Parent Alternative Proposal” shall be deemed to be references to “more than 50%”; or (iiiii) the Termination Fee if The Company shall have terminated this Agreement is terminated pursuant to Section 8.1(e)(ii8.1(c)(i); then, Parent shall, (I) and within 12 months in the case of such termination either clause (xi) above, upon the earlier of the execution of a definitive agreement with respect to a Parent Alternative Proposal or the consummation of a Parent Alternative Proposal, pay the Company (or one or more of its designees) the Company Acquisition Proposal is consummated or Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(a); and (yII) in the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreementcase of clause (ii) above, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) business days after Business Days of such termination, pay the termination Company (or one or more of this Agreement. Any fee due under Section 8.3 (b)(iiits designees) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid Parent Termination Fee, in each case by wire transfer of same-day fundsimmediately available funds to one or more accounts designated by the Company; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Under no circumstances will Following receipt by the Company be obligated (or one or more of its designees) of the Parent Termination Fee in accordance with this Section 8.3(c), Parent shall have no further liability with respect to this Agreement or the transactions contemplated herein to the Company or its Subsidiaries or Affiliates or any other Person, other than in respect of willful and intentional breach of this Agreement or Fraud. (d) If either party fails to timely pay fees an amount due pursuant to this Section 8.3(b8.3, the defaulting party shall pay the non-defaulting party interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment is actually received. (e) The parties acknowledge that the agreements contained in excess this Section 8.3 are an integral part of $17,000,000 the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement. If, in order to obtain any amount due under this Section 8.3, a party commences a proceeding that results in judgment for such party for such amount, the aggregatedefaulting party shall pay such party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b) and (c) of this Section 8.3, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expensesexpense, whether or not except that expenses incurred in connection with printing the Proxy Materials and the Registration Statement, registration and filing fees incurred in connection with the Registration Statement, the Proxy Materials and the listing of additional shares pursuant to Section 7.1(f) and fees, costs and expenses associated with compliance with the HSR Act and applicable state securities laws in connection with the Merger is consummatedshall be shared equally by Company and Parent. (b) The In the event that Parent shall terminate this Agreement pursuant to Section 8.1(c) Company shall pay to promptly reimburse Parent: , but no more than $250,000, for all of the out-of-pocket costs and expenses (iincluding, without limitation, the fees and expenses of its advisors, accountants and legal counsel) a fee of $17,000,000 (the "Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of reasonably incurred by Parent in connection with this Agreement and prior the transactions contemplated hereby and the due diligence review of Company by Parent. Any payment required to the be paid pursuant to this Section 8.3(b) will be made promptly by wire transfer of same day funds, but in no event later than three (3) business days following such termination of this Agreement, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.18.1(c), . (Cc) In the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) event that Company shall terminate this Agreement is terminated pursuant to Section 8.1(d) Parent shall promptly reimburse Company, but no more than $250,000, for all of the out-of-pocket costs and expenses (Eincluding, without limitation, the fees and expenses of its advisors, accountants and legal counsel) within 12 months of such termination a reasonably incurred by Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if in connection with this Agreement is terminated and the transactions contemplated hereby and the due diligence review of Parent by Company. Any payment required to be paid pursuant to this Section 8.1(e)(ii8.3(c) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall will be paid within two (2) business days after the termination of this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid made promptly by wire transfer of same-same day funds. Under , but in no circumstances will the Company be obligated to pay fees event later than three (3) business days following such termination pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregate8.1(d).

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c) and (d) of this Section 8.37.3, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expensesexpense, whether or not except that expenses incurred in connection with printing the Proxy Materials and the Registration Statement, registration and filing fees incurred in connection with the Registration Statement, the Proxy Materials and the listing of additional shares pursuant to Section 6.1(g) and qualification and filing fees associated with efforts to comply with applicable state securities laws in connection with the Merger is consummatedshall be shared equally by Company and Parent. (b) The Company shall pay to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if If Parent terminates this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii7.1(c)(iii) or (iv)as a result of the failure by Company, or any of its stockholders who are parties to the Company Stockholder Agreement, or any of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 8.1(h4.3, or if any Company Takeover Proposal or Trigger Event (where Company is the Issuer) is consummated (as defined in Section 7.3(g); ) by or with any person (iior any affiliate of any person) the Termination Fee if (A) after the date that made a Company Takeover Proposal prior to termination of this Agreement and or that caused a Trigger Event (where Company is the Issuer) prior to such termination, then Company shall promptly reimburse Parent for all of the termination documented out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of this Agreementits advisors, any person makes a Company Takeover Proposal, (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1accountants and legal counsel), (C) and, in addition to any other remedies Parent may have, Company shall promptly pay to Parent the Minimum Tender Condition is not satisfied at the expiration sum of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period$2,000,000. (c) Any fee due under If Company terminates this Agreement pursuant to Section 8.3(b)(i7.1(d)(iii) shall be paid within two as a result of the failure by Parent, or any of its stockholders who are parties to the Parent Stockholder Agreement, or any of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 4.4, or if any Parent Takeover Proposal or Trigger Event (2where Parent is the Issuer) business days after the is consummated (as defined in Section 7.3(g)) by or with any person (or any affiliate of any person) that made a Parent Takeover Proposal prior to termination of this Agreement. Any fee due under Section 8.3 Agreement or that caused a Trigger Event (b)(iiwhere Parent is the Issuer) shall be paid at or prior to the consummation such termination, then Parent shall promptly reimburse Company for all of the relevant transaction. All out-of-pocket costs and expenses incurred by Company in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees due under Section 8.3(band expenses of its advisors, accountants and legal counsel), and, in addition to any other remedies Company may have, Parent shall promptly pay to Company the sum of $2,000,000. (d) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees If Parent terminates this Agreement pursuant to Section 8.3(b7.1(c)(i) under circumstances not described in excess Section 7.3(b), then Company shall promptly reimburse Parent for all of $17,000,000 the documented out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel). If Company terminates this Agreement pursuant to Section 7.1(d)(i) under circumstances not described in Section 7.3(c), then Parent shall promptly reimburse Company for all of the out-of-pocket costs and expenses incurred by Company in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel). (e) As used herein, a "Trigger Event" shall occur if any Person (as that term is defined in Section 13(d) of the Exchange Act and the regulations promulgated thereunder) acquires securities representing 15% with respect to Company or 50% with respect to Parent, or more, or commences a tender or exchange offer, open market purchase program or other publicly announced initiative following the successful consummation of which the offeror and its affiliate would beneficially own securities representing 15% with respect to Company or 50% with respect to Parent, or more, of the voting power of such issuer of the securities ("Issuer"); provided, however, a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing 15% with respect to Company or 50% with respect to Parent, or more of Issuer if such Person has not acquired such securities with the purpose or with the effect of changing or influencing the control of Issuer, or in connection with or as a participant in any transaction having such purpose or effect, including without limitation in connection with such Person (i) making any public announcement with respect to the voting of such shares at any meeting to consider any merger, consolidation, sale of substantial assets or other business combination or extraordinary transaction involving Issuer; (ii) making, or in any way participating in, any "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any voting securities of Issuer (including, without limitation, any such solicitation subject to Rule 14a-11 under the Exchange Act) or seeking to advise or influence any Person with respect to the voting of any voting securities of Issuer, directly or indirectly, relating to a merger or other business combination involving Issuer or the sale or transfer of a significant portion of assets (excluding the sale or disposition of assets in the aggregateordinary course of business) of Issuer; (iii) forming, joining or in any way participating in any "group" within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting securities of Issuer, directly or indirectly, relating to a merger or other business combination involving Issuer or the sale or transfer of a significant portion of assets (excluding the sale or disposition of assets in the ordinary course of business) of Issuer; or (iv) otherwise acting, alone or in concert with others, to seek control of Issuer or to seek to control or influence the management or policies of Issuer. (f) For purposes of this Agreement (i) "Company Takeover Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Company or any of its subsidiaries or the acquisition of 15% or more of the outstanding shares of capital stock of Company, or a significant portion of the assets of Company or any of its subsidiaries, other than the transactions contemplated by this Agreement; and (ii) "Parent Takeover Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Parent of any of its subsidiaries consisting in the acquisition of 50% or more of the outstanding shares of capital stock of Parent, or a significant portion of the assets of Parent, other than the transactions contemplated by this Agreement.

Expenses and Termination Fees. (a) Except as set forth in Subject to subsections (b), (c) and (d) of this Section 8.37.3 and Section 6.3(c), whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The Company shall pay to Parent: In the event that (i) Parent shall terminate this Agreement pursuant to Section 7.1(a)(v), (ii) either Parent or Company shall terminate this Agreement pursuant to Section 7.1(a)(vi)(B) following a fee failure of the shareholders of Company to approve this Agreement after any Takeover Proposal and, within six (6) months after such termination, the Company shall enter into a term sheet, letter of intent or definitive agreement with respect to a transaction associated with any Takeover Proposal, (iii) Parent shall terminate this Agreement pursuant to Section 7.1(a)(iii)(B), (C) or (D), or (iv) Company shall terminate this Agreement pursuant to Section 7.1(a)(iv)(B), then Company shall promptly, but in no event (x) later than fifteen (15) business days after such termination with respect to clause (i), pay to Parent in cash $17,000,000 2,500,000 (the "No-Shop Termination Fee") if this Agreement is terminated pursuant to either Section 8.1(e)(i), and (y) (1) no later than fifteen (15) days after such termination with respect to clauses (iii) or (iv)) above, and (2) later than fifteen (15) days after entering into a term sheet, letter of intent or Section 8.1(h); definitive agreement with respect to clause (ii) above, pay to Parent in cash $5,000,000 in cash (the "Full Termination Fee"; and together with the No-Shop Termination Fee collectively, the "Termination Fee"); provided, however, that with respect to Section 7.3(b)(iii), a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing twenty-five percent (25%) or more of Company if such Person has acquired such securities not with the purpose nor with the effect of changing or influencing the control of Company, nor in connection with or as a participant in any transaction having such purpose or effect, including without limitation not in connection with such Person (Ai) after the date of this Agreement and prior making any public announcement with respect to the termination voting of this Agreementsuch shares at any meeting to consider any merger, consolidation, sale of substantial assets or other business combination or extraordinary transaction involving Company, (ii) making, or in any way participating in, any person makes a "solicitation" of "proxies" (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any voting securities of Company Takeover Proposal(including, (Bwithout limitation, any such solicitation subject to Rule 14a-11 under the Exchange Act) or seeking to advise or influence any Person with respect to the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the voting of any voting securities of Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (D) this Agreement is terminated pursuant to Section 8.1(d) and (E) within 12 months of such termination a Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) forming, joining or in any way participating in any "group" within the Termination Fee if this Agreement is terminated pursuant meaning of Section 13(d)(3) of the Exchange Act with respect to Section 8.1(e)(ii) and within 12 months any voting securities of such termination either (x) the Company Acquisition Proposal is consummated or (yiv) otherwise acting, alone or in concert with others, to seek control of Company or to seek to control or influence the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether management or not such consummation is within such 12-month periodpolicies of Company. (c) Any fee due under Section 8.3(b)(i) In the event that Parent shall be paid within two (2) business days after the termination of terminate this Agreement. Any fee due under Section 8.3 (b)(ii) shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees Agreement pursuant to Section 8.3(b7.1(a)(iii)(A), Company shall promptly reimburse Parent for all of the actual, documented, reasonable out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its outside advisors, outside accountants and outside legal counsel). (d) In the event that Company shall terminate this Agreement pursuant to Section 7.1(a)(iv)(A), Parent shall promptly reimburse Company for all of the actual, documented and reasonable out-of-pocket costs and expenses incurred by Company in excess connection with this Agreement and the transactions contemplated hereby (including without limitation the fees and expenses of $17,000,000 in the aggregateits outside advisors, outside accountants and outside legal counsel).

Expenses and Termination Fees. (a) Except as set forth in otherwise provided by this Section 8.3Agreement, whether or not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby by this Agreement, including filing fees and the fees and expenses of advisors, accountants, legal counsel and financial printers, shall be paid by the party incurring such expenses, whether cost or not the Merger is consummatedexpense. (b) The Company shall pay to Parent: (i) a fee of $17,000,000 (the "Termination Fee") if If this Agreement is terminated pursuant to either Section 8.1(e)(i), (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) by Genovo pursuant to Section 7.1(c)(i) or by Targeted pursuant to Section 7.1(d)(iii) and a Superior Proposal is publicly announced at any time within six months after the date of such termination and completed within twelve months after the date of this Agreement and prior or (B) by Targeted pursuant to Section 7.1(b)(iv) or (v) or 7.1(d)(i) or (ii) (each such case of termination, a "Trigger Event"), Genovo shall pay to ------------- Targeted (by wire transfer of immediately available funds not later than the date of termination of this Agreement) an amount equal to $1.5 million; provided that, any person makes a Company Takeover Proposal, (B) in the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request case of termination by Targeted pursuant to Section 1.17.1(d)(iii), (C) the Minimum Tender Condition is Targeted shall not satisfied at the expiration be in breach of the Offerany of its representations, (D) warranties, covenants or agreements. Receipt by Targeted of such payment shall constitute conclusive evidence that this Agreement is has been validly terminated pursuant to Section 8.1(d) and (E) within 12 months upon payment of such termination a Company Acquisition Proposal is consummated amount Genovo shall be fully released and discharged from any liability or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether obligation resulting from or not such consummation is within such 12-month period; and (iii) the Termination Fee if under this Agreement is terminated pursuant to Section 8.1(e)(ii) and within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month periodAgreement. (c) Any fee due under If Genovo shall terminate this Agreement pursuant to Section 8.3(b)(i7.1(c)(ii) or (iii), Targeted shall be paid within two pay to Genovo (2) business days after by wire transfer of immediately available funds not later than the date of termination of this Agreement) an amount equal to $1.5 million. Any fee due under Section 8.3 (b)(ii) Receipt by Genovo of such payment shall constitute conclusive evidence that this Agreement has been validly terminated and upon payment of such amount Targeted shall be paid at fully released and discharged from any liability or prior to the consummation of the relevant transaction. All fees due obligation resulting from or under Section 8.3(b) shall be paid by wire transfer of same-day funds. Under no circumstances will the Company be obligated to pay fees pursuant to Section 8.3(b) in excess of $17,000,000 in the aggregatethis Agreement.

Expenses and Termination Fees. (a) Except as set forth in this Section 8.3Subject to Sections 8.03(b) through 8.03(g), whether or -------------------------------- not the Merger is consummated, all fees costs and expenses incurred in connection with this Agreement Agreement, any related agreements and documents and the transactions contemplated hereby and thereby (including the fees and expenses of advisers, accountants and legal counsel) shall be paid by the party incurring such expenses, whether or not the Merger is consummatedexpense. (b) The In the event that this Agreement is terminated by Parent pursuant to Section 8.01(c)(ii) or Section 8.01(g) or by ------------------- --------------- Company pursuant to Section 8.01(h), then Company shall pay to Parent --------------- the sum of two hundred twenty five million dollars ($225,000,000) upon termination of this Agreement by Company pursuant to Section 8.01(h) --------------- or within five business days after termination of this Agreement by Parent pursuant to Section 8.01(c)(ii) or Section 8.01(g). The payment ------------------- --------------- referred to in this Section 8.03(b) shall be made by wire transfer of --------------- same-day funds to an account specified by Parent:. (c) In the event that (i) a fee bona fide offer by a third party (other than Parent or an affiliate of $17,000,000 Parent) for a Specified Company Takeover Transaction (as defined below) becomes known publicly or becomes known to Company stockholders generally prior to the "Termination Fee") if date on which a vote of Company stockholders on the proposal to adopt this Agreement is terminated pursuant taken by the Company stockholders, and (ii) such offer has not been definitively withdrawn at least seven (7) days prior to either Section 8.1(e)(i)the date on which a vote of Company stockholders on the proposal to adopt this Agreement is taken by the Company stockholders, and (iii) or (iv), or Section 8.1(h); (ii) the Termination Fee if (A) after the date of this Agreement and prior to the termination time that a vote of Company stockholders on the proposal to adopt this AgreementAgreement is taken by the Company stockholders, any person makes a Company Takeover Proposalno Parent Material Adverse Effect has occurred and no Parent Material Adverse Effect will, solely with the passage of time, imminently occur, and (B) the Offer remains open until the scheduled expiration date immediately following the date such Company Takeover Proposal is made (or such later date as the Offer may be extended at the Company's request pursuant to Section 1.1), (C) the Minimum Tender Condition is not satisfied at the expiration of the Offer, (Div) this Agreement is validly terminated by Parent pursuant to Section 8.1(d8.01(e)(ii) and (E) within 12 months of such termination a or by Company Acquisition Proposal is consummated or the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period; and (iii) the Termination Fee if this Agreement is terminated pursuant to Section 8.1(e)(ii------------------- 8.01(f)(ii), then Company shall pay to Parent the sum of fifteen ----------- million dollars ($15,000,000) and upon termination of this Agreement by Company or within 12 months of such termination either (x) the Company Acquisition Proposal is consummated or (y) the Company enters into an agreement to consummate a Company Acquisition Proposal and any Company Acquisition Proposal is thereafter consummated that includes the person party to such agreement, whether or not such consummation is within such 12-month period (c) Any fee due under Section 8.3(b)(i) shall be paid within two (2) five business days after the termination of this AgreementAgreement by Parent. Any fee due under The payment referred to in this Section 8.3 (b)(ii8.03(c) --------------- shall be paid at or prior to the consummation of the relevant transaction. All fees due under Section 8.3(b) shall be paid made by wire transfer of same-day funds. Under no circumstances will funds to an account specified by Parent. (d) In the event that (i) a bona fide offer by a third party (other than Parent or an affiliate of Parent) for a Specified Company be obligated Takeover Transaction becomes known publicly or becomes known to pay fees Company stockholders generally, and (ii) this Agreement is validly terminated by Company pursuant to Section 8.3(b8.01(b), and (iii) the offer --------------- referred to in excess clause "(i)" of this Section 8.03(d) is pending at the --------------- time this Agreement is terminated by Company pursuant to Section ------- 8.01(b), and (iv) the failure of the Merger to occur on or before the ------- date referred to in Section 8.01(b) is not attributable to a material --------------- breach of this Agreement by Parent or to any challenge to, or any investigation or review of, the Merger by any Governmental Entity, and (v) prior to the termination of this Agreement by Company pursuant to Section 8.01(b), no Parent Material Adverse Effect has occurred and no --------------- Parent Material Adverse Effect will, solely with the passage of time, imminently occur, and (vi) prior to the termination of this Agreement by Company pursuant to Section 8.01(b) the Company Stockholders --------------- Meeting shall not have been held and no vote of Company stockholders shall have been taken on the proposal to adopt this Agreement, then Company shall pay to Parent the sum of fifteen million dollars ($17,000,000 15,000,000) upon termination of this Agreement by Company pursuant to Section 8.01(b). The --------------- payment referred to in this Section 8.03(d) shall be made by wire --------------- transfer of same-day funds to an account specified by Parent. (e) In the aggregate.event that (x) all of the conditions referred to in clauses "(i)," "(ii)," "(iii)" and "