Common use of Expenses and Termination Fees Clause in Contracts

Expenses and Termination Fees. (a) Except as provided in subsections (b) and (c) of this Section 8.3, whether or not the Merger is consummated, all 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 expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) the Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%).

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c) and (cd) of this Section 8.37.3, whether or not the Merger is consummated, all 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 expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(f), and fees, costs and expenses associated with compliance with applicable Blue Sky securities laws in connection with the Merger and HSR filing fees shall be shared equally by the Company and Parent. (b) In the event thatIf: (i) Parent shall terminate terminates this Agreement pursuant Section 7.1(g); or (ii) Parent or Company terminates this Agreement pursuant to Section 8.1(e); (ii) the Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(bSections 7.1(b) or Section 8.1(f)(ii7.1(h)(ii) and, prior to such termination pursuant to this Section 8.1(b) or Section 8.1(f)(ii7.3(b)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Companywhich, in either case which at the time of such termination termination, shall not have been absolutely and unconditionally withdrawn or abandoned by the other party theretothereto (provided, thenthat, in each such eventwithdrawal has been made early enough as to no longer -------- prejudice the Company's shareholders consideration of the Merger), in addition to any other remedies Parent may have, the then Company shall promptly pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii7.3(b)(i), the sum of three million eight hundred thousand dollars ($3,800,000), 8,000,000 and (2) in the case of a termination described in Section 8.3(b)(iii7.3(b)(ii), the sum of $1,000,000, provided, that, if -------- ---- within twelve (12) 12 months of a termination described in Section 8.3(b)(iii7.3(b)(ii) any Takeover Proposal or any Trigger Event shall be consummated or consummated, the Company will promptly pay to Parent an additional $7,000,000. provided, further, that any letter of intent or preliminary or definitive agreement with respect thereto such ----------------- payments shall be signed, the sum without prejudice to any other remedies that Parent may have for a willful breach of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable this Agreement by the Company or its subsidiaries (or in the case of Section 4.3 any Company Representative). (c) In the event that Parent shall be three million five hundred thousand dollars terminate this Agreement pursuant to Section 7.1(c), Company shall promptly reimburse Parent for all of the out-of- pocket costs and expenses (not to exceed $3,500,0001,000,000) if incurred by Parent in connection with this Agreement and the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than transactions contemplated hereby (including the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right fees and expenses of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entityits advisors, accountants and legal counsel). The payments required by pursuant to this Section 8.3(b7.3(c) shall be made within two without prejudice to any other remedies that Parent may have for a willful breach of this Agreement by the Company or its subsidiaries (2) business days after termination or in the case of a termination Section 4.3 any Company Representative). Any amounts payable pursuant to this Section 7.3(c) shall be reduced by any amounts to Parent pursuant to Section 8.1(e7.3(b), prior to termination in (d) In the event of a termination by the that Company shall terminate this Agreement pursuant to Section 8.1(g7.1(e), and upon the earlier Parent shall promptly reimburse Company for all of the out-of- pocket costs and expenses (not to exceed $1,000,000) incurred by Company in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses of its advisors, accountants and legal counsel). The payments pursuant to this Section 7.3(d) shall be without prejudice to any other remedies that Company may have for a willful breach of this Agreement by the Parent or its subsidiaries. (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), except a shareholder party to an enforceable Shareholder Agreement, acquires securities representing 15% 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 affiliates would beneficially own securities representing 15% or more, of the voting power of Company. (f) For purposes of this Agreement, "Takeover Proposal" means any ----------------- agreement, offer or proposal, written or oral, for (A) a merger, reorganization, share exchange, consolidation, or other business combination involving Company or any of its subsidiaries, or (B) a tender offer for the Company, or (C) the acquisition of 15% or more of the outstanding shares of any class of capital stock of Company, or (D) the acquisition of a significant portion of the assets of Company or any of its subsidiaries, other than, in each case, the transactions contemplated by this Agreement. (g) For purposes of Section 7.3(b) above, (A) "consummation" of a Takeover Proposal shall occur on the date a definitive written agreement is entered into with respect to a merger or other business combination involving Company or the acquisition of 15% or more of the outstanding shares of any class of capital stock of Company, or sale or transfer of any material assets (excluding the sale or disposition of assets in the ordinary course of business) of Company or any of its subsidiaries and (B) "consummation" of a Trigger Event shall occur on the date any Person (other than any shareholder which currently owns 15% or Takeover Proposal or more of the execution and delivery outstanding shares of any letter capital stock of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(bCompany, provided -------- that such shareholder does not increase its ownership) or Section 8.1(f)(ii). Solely for purposes any of Section 8.3(b), all references to fifteen percent (its affiliates or associates would beneficially own securities representing 15%) in the definition % or more of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)voting power of Company, following a tender or exchange offer.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c), (d), (e) and (cf) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the party incurring such expense, except it being understood and agreed that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, and registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(d) and filing fees associated with compliance with applicable OTS requirements in connection with the Merger shall be shared deemed to be incurred equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); , (ii) the Parent shall terminate this Agreement pursuant to Section 7.1(c)(ii), (iii) or (iv), (iii) either Parent or Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii7.1(f)(ii) Parent or following a failure of the stockholders of Company shall terminate to approve this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii)the time of the Company Stockholders Meeting, there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, then in either the case which at of each of (i) through (iii) Company shall reimburse Parent for all of the time out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the reasonable fees and expenses of such termination shall not have been absolutely its advisors, accountants and unconditionally withdrawn or abandoned by the other party theretolegal counsel), then, in each such eventand, in addition to any other remedies Parent may have, the Company shall promptly pay to Parent (1) cash in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three an amount equal to fifty-four million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,00054,000,000) (provided, however, the "Termination Fee"). (c) In the event that the amount payable by the (i) Parent or Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by terminate this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent Agreement pursuant to Section 8.1(e)7.1(b) and, prior to termination in the event time of a termination by the Company pursuant to Section 8.1(g)such termination, and upon the earlier of the consummation of there shall have been a Trigger Event or a Takeover Proposal with respect to Company or (ii) Parent shall terminate this Agreement pursuant to Section 7.1(c)(i), Company shall promptly reimburse Parent for all of the execution reasonable out-of-pocket costs and delivery expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of any its advisors, accountants and legal counsel), and, in the event a definite agreement or letter of intent or preliminary or definitive agreement is entered by Company with respect to a Takeover Proposal, a Takeover Proposal is consummated or a Trigger Event results in a Person or group of Persons within the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes meaning of Section 8.3(b), all references to fifteen percent (15%13(d) in the definition of the term "Takeover Proposal" shall be increased to Exchange Act and the regulations thereunder beneficially owning forty percent (40%) ), or results in a Person together with any other Persons acting in concert within the meaning of Part 574 of the OTS rules and all references to eighty five regulations beneficially owning forty percent (8540%), or more of the voting power of Company within nine (9) months of the later of (x) such termination of this Agreement and (y) the payment of the above-described expenses, Company shall also promptly pay to Parent the Termination Fee. (d) In the event that Parent or Company shall terminate this Agreement pursuant to Section 7.1(f)(iii), then Parent shall promptly reimburse Company for all of the reasonable 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 twenty percent (20%) therein shall be reduced to sixty 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 twenty percent (6020%)) or more, of the voting power of Company. (f) For purposes of this Agreement, "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 twenty percent (20%) or more of the outstanding shares of capital stock, or a significant portion of the assets of, Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement.

Expenses and Termination Fees. (a) Except as provided in Subject to Section 8.2 and subsections (b), (c), (d), (e) and (cf) of this Section 8.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer DocumentsRegistration Statement, registration, registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 and the proxy materials and the Nasdaq listing of the Newco Common Stock pursuant to Section 6.14 shall be shared equally by the Company Omega and ParentOnline. (b) In the event that: (i) Parent shall terminate that this Agreement is terminated pursuant to Section 8.1(e) or Section 8.1(g); , Online shall promptly (iibut in all events within five (5) business days of the Company shall terminate failure to reaffirm the recommendation of the Merger as required under Section 8.1(e) or on or prior to Online's termination of this Agreement pursuant to Section 8.1(g); or , as the case may be) pay Omega an amount equal to $5,000,000 by wire transfer to an account designated by Omega. (iiic) Parent or In the Company shall terminate event that this Agreement is terminated pursuant to Section 8.1(b8.1(f), Omega shall promptly (but in all events on or prior to Omega's termination of this Agreement) pay Online an amount equal to $5,000,000 by wire transfer to an account designated by Online. (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 ten percent (10%) or Section 8.1(f)(ii) andmore, prior to such termination pursuant to Section 8.1(bor 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 ten percent (10%) or Section 8.1(f)(ii)more, there shall have been of the voting power of Omega or Online (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in as the case of a termination described in Section 8.3(b)(imay be). (e) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for For purposes of Section 8.3(b)this Agreement, all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty means any offer or proposal for, or any written indication of interest in, a merger or other business combination involving Omega or Online (as the case may be) or any of its subsidiaries or the acquisition of ten percent (4010%) and all references to eighty five percent or more of the outstanding shares of capital stock, or a significant portion of the assets of, Omega or Online (85%as the case may be) therein shall be reduced to sixty percent (60%)or any of its subsidiaries, other than the transactions contemplated by this Agreement.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b) ), (c), (d), and (cf) 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 fees, costs and expenses of its advisers, accountants brokers, finders, agents, accountants, bankers and legal counsel) shall be paid by the party incurring such fee, cost and expense, except that . (b) Each Party shall bear its own costs and expenses incurred in connection with (i) the filing, printing and mailing of the proxy materials and the Offer Documents, registrationProxy Statement/Prospectus, and filing fees incurred (ii) the retention of any information agent or other service provider in connection with the Offer Documents, the Schedule 14D-9 Merger. Parent and the proxy materials Company shall be shared equally by each pay one-half of the Company and Parentfiling fee under the HSR Act. (bc) In the event that: that this Agreement is terminated by Parent pursuant to, Section 8.1(e), Section 8.1(f), Section 8.1(g), or Section 8.1(i), or by the Company pursuant to Section 8.1(j), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(d)), the Company shall, within two (2) Business Days of such termination, make a non-refundable cash payment to Parent in an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement, the Support Agreements or any of the other transactions contemplated by this Agreement and the Support Agreements) (collectively, the “Parent Expenses”) (it being understood, however, that Parent’s other remedies, if any, shall not be affected by any payments under this Section 8.3(c)) not to exceed $3.0 million in the aggregate. (d) In addition to any rights that Parent may have pursuant to Section 8.3(c), in the event that this Agreement is terminated by Parent pursuant to Section 8.1(c), Section 8.1(e) or Section 8.1(f) and (i) at or prior to the time of such termination an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made and not withdrawn prior to termination, and (ii) within twelve (12) months after the date of any such termination, any Acquisition Proposal is consummated or a definitive agreement contemplating an Acquisition Proposal is executed that is subsequently consummated, then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(c)) the Company shall pay by wire transfer of same-day funds to Parent a termination fee of $12.0 million (the “Termination Fee”) at the applicable time set forth in the next sentence as well as reimburse the Parent the Parent Expenses not to exceed $3.0 million in the aggregate to the extent not previously paid under Section 8.3(c). Any Termination Fee payable to Parent pursuant to the preceding sentence shall be made by the Company at the time such Acquisition Proposal is consummated. In the event that Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii8.1(g) the Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii8.1(j), then the Company shall pay the Termination Fee to Parent within two (2) Business Days of such termination. (e) Each of the parties hereto acknowledges and agrees that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. Accordingly, if there shall have been any permanent injunction, other Order issued by any Court of competent jurisdiction or other legal restraint or prohibition, that would reduce or otherwise limit the rights of Parent in any material respect under this Section 8.3, Parent shall have the right to terminate this Agreement pursuant to Section 8.1(i) hereof. (Af) a Trigger Event with respect If the Company fails to the Company, or (B) a Takeover Proposal with respect promptly pay when due any amount payable pursuant to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party theretothis Section 8.3, then: (i) the Company shall reimburse Parent for all fees, costs and expenses (including legal fees, costs and expenses) incurred in each such eventconnection with any action taken to collect payment and the enforcement by Parent of its rights under this Section 8.3, in addition to any other remedies Parent may have, and (ii) the Company shall pay to Parent interest on such overdue amount (1for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to the party in full) at a rate per annum equal to 300 basis points over the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall date such overdue amount was originally required to be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)paid.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c) and (cf) of this Section 8.3, whether or not the Offer or 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 fees, costs and expenses of its advisers, accountants brokers, finders, agents, accountants, bankers and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) the Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that Parent shall pay the amount payable filing fee for the premerger notification relating to the transactions contemplated by this Agreement under the HSR Act; and, provided further, (i) that the Company and Parent shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity share equally all fees and expenses, other than attorneys’ fees, incurred in connection with: (A) the person filing, printing and mailing of the Offer Documents, Schedule 14D-9 and the Proxy Statement and any amendments or entity making supplements thereto, and (B) the Takeover Proposal retention of any information agent, depositary or Trigger Event which originally triggered other service provider in connection with the right of termination under Section 8.1(bOffer; and (ii) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination event that this Agreement is terminated: (A)(1) by Parent pursuant to Section 8.1(e), and (2) at or prior to the time of such termination in the event of a termination an Alternative Proposal shall have been disclosed, announced, commenced, submitted or made, or (B) by Parent pursuant to Section 8.1(g)(i) or by the Company pursuant to Section 8.1(g8.1(h), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(b) or Section 8.3(c)), in each of clause (A) and upon (B) of this sentence, the Company shall make a non-refundable cash payment to Parent, at the time specified in the next sentence, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement, the Support Agreements, the Debt Financing Commitment, the Sponsor Financing Commitment and otherwise in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement and the Support Agreements, subject to a maximum amount of $2,000,000 (it being understood, however, that Parent’s other remedies, if any, shall not be affected by any payments under this Section 8.3). In the case of termination of this Agreement by the Company pursuant to Section 8.1(h), any non-refundable payment required to be made pursuant to this clause (ii) of this Section 8.3(a) shall be made by the Company prior to or at the time of such termination; and in the case of termination of this Agreement by Parent pursuant to Section 8.1(e) or Section 8.1(g)(i), any non-refundable payment required to be made pursuant to this clause (ii) of this Section 8.1(a) shall be made by the Company within three (3) Business Days. (b) If this Agreement is terminated by Parent pursuant to Section 8.1(e) and: (i) at or prior to the time of such termination an Alternative Proposal shall have been disclosed, announced, commenced, submitted or made, and (ii) within 12 months after the date of any such termination, an Alternative Transaction (whether or not relating to such Alternative Proposal) is consummated or a definitive agreement contemplating an Alternative Transaction (whether or not relating to such Alternative Proposal) is executed, then the Company shall pay to Parent, in cash at the earlier of the consummation of a Trigger Event or Takeover Proposal time such Alternative Transaction is consummated or the execution time such definitive agreement is executed, a non-refundable fee in the amount of $2,500,000. (c) If this Agreement is terminated by Parent pursuant to Section 8.1(g)(i) or by the Company pursuant to Section 8.1(h), then the Company shall pay to Parent, in cash at the time specified in the next sentence (in addition to the amounts payable pursuant to Section 8.3(a)), a non-refundable fee in the amount of $2,500,000. In the case of termination of this Agreement by Parent pursuant to Section 8.1(g)(i), the fee referred to in the preceding sentence shall be paid by the Company within two (2) Business Days after such termination; and delivery in the case of termination of this Agreement by the Company pursuant to Section 8.1(h), the fee referred to in the preceding sentence shall be paid by the Company at or prior to the time of such termination. (d) If this Agreement is terminated by Parent, Merger Sub or the Company pursuant to Section 8.1(c) or Section 8.1(f) and (i) at or prior to the time of such termination an Alternative Proposal shall have been disclosed, announced, commenced, submitted or made, and (ii) within 12 months after the date of any letter of intent such termination, an Alternative Transaction (whether or preliminary not relating to such Alternative Proposal) is consummated or a definitive agreement contemplating an Alternative Transaction (whether or not relating to such Alternative Proposal) is executed, then the Company shall pay to Parent, in cash at the earlier of the time such Alternative Transaction is consummated or the time such definitive agreement is executed, a non-refundable fee in the amount of $4,500,000. 45 (e) Each of Parent, Merger Sub and the Company acknowledges and agrees that the agreements contained in Sections 8.3(a), (b), (c), and (d) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. (f) If this Agreement is terminated by the Company pursuant to Section 8.1(i), the Parent shall pay to the Company in cash, within two (2) Business Days after such termination, a non-refundable fee in the amount of $6,000,000 (the “Reverse Termination Fee”). Notwithstanding anything to the contrary contained in this Agreement, if this Agreement is terminated as set forth in Section 8.1(i), the Company’s right to receive the Reverse Termination Fee pursuant to this Section 8.3(f) shall be the sole and exclusive remedy of the Company and the Company Subsidiaries and their respective shareholders and Affiliates against Parent or any of its Related Persons (as defined below) for, and the Company and the Company Subsidiaries (on their own behalf and on behalf of their respective shareholders and Affiliates) shall be deemed to have waived all other remedies (including equitable remedies) with respect to, (i) any failure of the Offer or the Merger to be consummated, (ii) any breach by Parent or Merger Sub of its obligation to consummate the Offer and the Merger or any other covenant, obligation, representation, warranty or other provision set forth in this Agreement. Upon payment of the Reverse Termination Fee pursuant to this Section 8.3(f), neither Parent nor any of its Related Persons shall have any further liability or obligation (under this Agreement or otherwise) relating to or arising out of this Agreement or any of the transactions contemplated by this Agreement, and in no event shall the Company or the Company Subsidiaries (and the Company shall ensure that their respective Affiliates do not) seek to recover any money damages or losses, or seek to pursue any other recovery, judgment, damages or remedy (including any equitable remedy) of any kind, in connection with this Agreement or the transactions contemplated by this Agreement. The parties agree that the Reverse Termination Fee and the agreements contained in this Section 8.3(f) are an integral part of the Offer and the Merger and the other transactions contemplated by this Agreement and that the Reverse Termination Fee constitutes liquidated damages and not a Takeover Proposal penalty. In addition, notwithstanding anything to the contrary contained in this Agreement, regardless of whether or not this Agreement is terminated, except for Parent’s obligation to pay the Company the Reverse Termination Fee if and when such Reverse Termination Fee becomes payable by Parent to the Company pursuant to this Section 8.3(f): (1) neither Parent nor any of Parent’s Related Parties shall have any liability for (x) any inaccuracy in any representation or warranty set forth in Section 4.5 or any inaccuracy in any other representation or warranty relating to the Debt Financing (regardless of whether such representation or warranty refers specifically to the Debt Financing), or (y) any breach of any of the Parent Financing Covenants; and (2) in the event of termination pursuant any Financing Failure, neither Parent nor any of Parent’s Related Parties shall have any liability of any nature (for any breach of this Agreement or otherwise) to Section 8.1(b) the Company and the Company Subsidiaries or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition any shareholder or Affiliate of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)Company or the Company Subsidiaries.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b) and (c) of this Section 8.3, whether or not the Merger Arrangement is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer DocumentsCircular, registration, registration and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 Circular and the proxy materials listing of additional shares pursuant to Section 6.9 shall be shared equally by the Company VERSUS and ParentEGI. (b) In the event that: that (i) Parent EGI shall terminate this Agreement pursuant to Section 8.1(e); , (ii) the Company EGI shall terminate this Agreement pursuant to Section 8.1(g8.1(c)(ii); , (iii) or (iv), or (iii) Parent either EGI or VERSUS shall terminate this Agreement pursuant to Section 8.1(b), or Section 8.1(f)(ii) following a failure of the Company securityholders of VERSUS to approve the Arrangement Resolution, and (in either case), prior to the time of the VERSUS Meeting, there shall have been a Trigger Event or an Acquisition Proposal with respect to VERSUS, then in the case of each of (i) through (iii) VERSUS shall, in addition to any other remedies EGI may have (subject to Section 8.2), promptly pay to EGI cash in an amount equal to Five Million Two Hundred Seventeen Thousand dollars ($5,217,000) (the "Termination Fee") (which Termination Fee includes a reasonable estimate of the out-of-pocket costs and expenses incurred by EGI in connection with this Agreement and the transactions contemplated hereby). (c) In the event that (i) EGI or VERSUS shall terminate this Agreement pursuant to Section 8.1(b) under circumstances not described in Section 8.3(b), (ii) EGI shall terminate this Agreement pursuant to Section 8.1(c)(i) or (iii) EGI shall terminate this Agreement pursuant to Section 8.1(f)(ii) andunder circumstances not described in Section 8.3(b), VERSUS shall promptly reimburse EGI for all of the out-of- pocket costs and expenses incurred by EGI in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel) (the "Expenses") (provided that, in the case of clauses (i) or (iii) of this paragraph or in the case of clause (ii) of this paragraph with respect to breaches of representations and warranties) or twelve months (in the case of clause (ii) of this paragraph with respect to breaches of obligations or covenants) of the later of (x) such termination of this Agreement and (y) the payment of the Expenses, VERSUS shall also promptly pay to EGI the Termination Fee less the amount of the Expenses previously reimbursed; provided that VERSUS shall not be obligated to pay the Termination Fee less the amount of the Expenses previously reimbursed with respect to clause (i) of this paragraph if on or prior to such termination October 31, 2000, the securityholders of VERSUS shall approve the Arrangement Resolution, on or after October 31, 2000 EGI shall terminate this Agreement pursuant to Section 8.1(b) or under circumstances not described in Section 8.1(f)(ii), there shall have been (A8.3(b) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of and such termination securityholder approval shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)such termination.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c), (d), (e) and (cf) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall be paid by the party incurring such expense, except it being understood and agreed that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, and registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(d) and filing fees associated with compliance with applicable OTS requirements in connection with the Merger shall be shared deemed to be incurred equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); , (ii) the Parent shall terminate this Agreement pursuant to Section 7.1(c)(ii), (iii) or (iv), (iii) either Parent or Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii7.1(f)(ii) Parent or following a failure of the stockholders of Company shall terminate to approve this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii)the time of the Company Stockholders Meeting, there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, then in either the case which at of each of (i) through (iii) Company shall reimburse Parent for all of the time out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the reasonable fees and expenses of such termination shall not have been absolutely its advisors, accountants and unconditionally withdrawn or abandoned by the other party theretolegal counsel), then, in each such eventand, in addition to any other remedies Parent may have, the Company shall promptly pay to Parent (1) cash in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three an amount equal to fifty-four million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,00054,000,000) (provided, however, the "Termination Fee"). (c) In the event that the amount payable by the (i) Parent or Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by terminate this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent Agreement pursuant to Section 8.1(e)7.1(b) and, prior to termination in the event time of a termination by the Company pursuant to Section 8.1(g)such termination, and upon the earlier of the consummation of there shall have been a Trigger Event or a Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination Company or (ii) Parent shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b7.1(c)(i), Company shall promptly reimburse Parent for all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent reasonable out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%).including, without

Expenses and Termination Fees. (a) Except as provided in subsections (b) and (c) of this Section 8.3, whether or not the Merger is consummated, all 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 expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 7.2(b), and fees, costs and expenses associated with compliance with applicable Blue Sky securities laws in connection with the Merger and filing fees under the HSR Act shall be shared equally by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) the Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three five million eight five hundred thousand dollars ($3,800,0005,500,000) (provided, however, that if Section 5.2(ii)(B) is applicable to such termination, the amount payable by the Company shall be two million six hundred thousand dollars ($2,600,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three five million eight five hundred thousand dollars ($3,800,0005,500,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%).the

Expenses and Termination Fees. (a1) Except as provided in subsections (b) and (c) of this Section 8.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with If 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 expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally is validly terminated by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii7.2(1)(c)(ii) to enter into a written definitive agreement with a Third Party or by the Company shall terminate this Agreement Parent pursuant to Section 8.1(g7.2(1)(d)(ii); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay or cause to be paid to the Parent in immediately available funds $75,000,000 (1) in each case, such fee, the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii“Company Termination Fee”), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e)the Parent, prior to within two Business Days after such termination and, in the event case of a termination by the Company, immediately before and as a condition to such termination. (2) If, (A) this Agreement is validly terminated by (1) the Parent or the Company pursuant to (x) Section 8.1(g7.2(1)(b)(iii) and at the time of such termination the Required Approval has not been received or (y) Section 7.2(1)(b)(i) or (2) by the Parent pursuant to Section 7.2(1)(d)(i), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or (B) following the execution and delivery of any letter this Agreement and prior to such valid termination of intent this Agreement, a bona fide Acquisition Proposal shall have been publicly announced or preliminary publicly disclosed and not publicly withdrawn or otherwise abandoned at least two Business Days prior to such termination of this Agreement, and (C) within 12 months following such valid termination of this Agreement, either an Acquisition Proposal is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Proposal, then the Company shall concurrently with respect such consummation or entry into a definitive agreement, pay, or cause to a Takeover Proposal be paid, to the Parent the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii)Parent. Solely for For purposes of this Section 8.3(b), 8.2(2) all references to fifteen “twenty percent (1520%) )” in the definition of the term "Takeover “Acquisition Proposal" ” shall be increased deemed to forty be references to “fifty percent (4050%).” (3) If this Agreement is terminated by the Parent or the Company pursuant to (i) Section 7.2(1)(b)(iii) and, at the time of such termination, (A) any of the conditions set forth in Section 6.1(5) (to the extent the applicable Order arises from or relates to Competition Laws or Foreign Investment Laws), Section 6.1(3) or Section 6.1(4) (such conditions in this clause (A), the “Applicable Conditions”) shall not have been satisfied, (B) a breach by the Company of its obligations under Section 4.2 has not been the principal cause of the failure of any of the Applicable Conditions to not be satisfied and (C) all other conditions set forth in Sections 6.1 (including Section 6.1(5) to the extent the applicable Order does not arise from or relate to Competition Laws or Foreign Investment Laws) and 6.2 shall have been satisfied (other than conditions that by their nature are to be satisfied at the Effective Time (assuming for the purpose of determining whether such other conditions set forth in Sections 6.1 and 6.2 have been satisfied in this clause, that all references to eighty five percent (85%) therein the “Effective Time” in such other conditions in Sections 6.1 and 6.2 shall be reduced deemed to sixty percent refer instead to the time of termination of this Agreement)) or waived in accordance with this Agreement, other than those conditions the failure of which to be satisfied was materially contributed to by a breach by Parent or Purchaser of their representations, warranties, covenants or agreements contained in this Agreement, or (60%ii) Section 7.2(1)(b)(ii) (to the extent the applicable Order arises from or relates to Competition Laws or Foreign Investment Laws), and, at the time of such termination, a breach by the Company of its obligations under Section 4.2 has not been the principal cause of such Order or such imposition of such Order, then Parent shall, within three Business Days following any such termination, pay to the Company, in cash by wire transfer of immediately available funds to the account designated in writing by the Company, $150,000,000 (such fee, the “Parent Termination Fee”). (4) Each Party agrees that (i) the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement and (ii) in light of the difficulty of accurately determining actual damages with respect to the foregoing, the right to payment of the Company Termination Fee or the Parent Termination Fee constitutes a reasonable estimate of the losses, damages, claims, costs or expenses that will be suffered by reason of any such valid termination of this Agreement and constitutes liquidated damages (and not a penalty) (and that neither such amount is excessive or unreasonably large, given the Parties’ intent and dealings with each other), and for greater certainty is not and is not intended to be an inducement, refund, reimbursement or assistance to either Party for entering into this Agreement, and hereby irrevocably waives, and agrees not to assert in any Proceeding arising out of or relating to this Agreement, any claim to the contrary. (5) Notwithstanding anything herein to the contrary, (i) the Parent and the Purchaser agree that, except in the case of fraud or any material and willful breach of this Agreement by the Company, upon any valid termination of this Agreement under circumstances where the Company Termination Fee is payable by the Company pursuant to this Section 8.2 and such Company Termination Fee is paid in full, the receipt by the Parent of the Company Termination Fee shall be deemed to be liquidated damages and the sole and exclusive remedy of the Parent and the Purchaser in connection with this Agreement or the transactions contemplated hereby and neither the Parent nor the Purchaser shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders, Affiliates or Representatives in connection with this Agreement or the transactions contemplated hereby and (ii) the Company agrees that, except in the case of fraud or any material and willful breach of this Agreement by the Parent or the Purchaser, upon any valid termination of this Agreement under circumstances where the Parent Termination Fee is payable by the Parent pursuant to this Section 8.2 and such fee is paid in full, the receipt by the Company of the Parent Termination Fee shall be deemed to be liquidated damages and the sole and exclusive remedy of the Company in connection with this Agreement or the transactions contemplated hereby and the Company shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Parent or any of Parent’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, stockholders, Affiliates or Representatives in connection with this Agreement or the transactions contemplated hereby. Each Party acknowledges and agrees that in no event shall the Company or Parent, as applicable, be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasion. For the avoidance of doubt, nothing in this Section 8.2 shall limit any remedies of the Parent or the Purchaser prior to any such valid termination of this Agreement under circumstances where the Company Termination Fee or the Parent Termination Fee is payable pursuant to this Section 8.2, including specific performance pursuant to Section 8.6. In no event will any Party be entitled to receive both (x) a grant of specific performance which results in the consummation of the Effective Time as contemplated in this Agreement and (y) payment of the Company Termination Fee or the Parent Termination Fee, as applicable.

Expenses and Termination Fees. (a) Except as provided in subsections (bSubject to Sections 7.3(b) and (c) of this Section 8.3----------------------------- 7.3(c), whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); 7.1(c)(ii) or (ii) this Agreement shall be terminated by Parent pursuant to Section 7.1(e)(ii) or by Company pursuant to Section 7.1(f)(ii), in either case following a failure of Company's shareholders to approve this Agreement and, prior to the time of the Company Shareholders Meeting, a Company Takeover Proposal shall have been made which at the time of the Company Shareholders Meeting shall not have been definitively withdrawn by the third party making such proposal, or (iii) Parent shall terminate this Agreement pursuant to Section 8.1(g); or (iii7.1(c)(i) Parent or and prior to the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior breach giving rise to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there a Company Takeover Proposal shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party theretomade, then, in each any such event, in addition to any other remedies Parent may have, Company shall promptly pay to Parent the sum of five million dollars ($5,000,000), and in the event that a Company Takeover Proposal is consummated within twelve months after such termination of this Agreement, Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the additional sum of three twenty-five million eight hundred thousand dollars ($3,800,00025,000,000) upon the consummation of such Company Takeover Proposal. (c) In the event that (i) Company shall terminate this Agreement pursuant to Section 7.1(d)(ii), and or (2ii) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event this Agreement shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination terminated by Parent pursuant to Section 8.1(e7.1(e)(iii), prior to termination in the event of a termination or by the Company pursuant to Section 8.1(g7.1(f)(iii), following a failure of Parent stockholders to grant the Parent Stockholder Approval and, prior to the time of the Parent Stockholders Meeting, a Parent Takeover Proposal shall have been publicly announced which shall not have been publicly and definitively withdrawn by the third party making such proposal, or (iii) Company shall terminate this Agreement pursuant to Section 7.1(d)(i) and prior to the breach giving rise to such termination a Parent Takeover Proposal shall have been publicly announced, then, in any such event, in addition to any other remedies Company may have, Parent shall promptly pay to Company the sum of five million dollars ($5,000,000), and, in the event that a Parent Takeover Proposal is consummated within twelve months after such termination of this Agreement, Parent shall pay to Company the additional sum of twenty-five million dollars ($25,000,000) upon the earlier of the consummation of such Parent Takeover Proposal. In the event that a Trigger Event or Parent Takeover Proposal is publicly announced and is thereafter withdrawn, the fact of such withdrawal shall be communicated to Parent stockholders a reasonable time before the Parent Stockholders Meeting, and the Parent Stockholders Meeting shall, if necessary, be adjourned or postponed for a reasonable period to permit dissemination of such information to Parent stockholders, withdrawal of proxies that may have been affected by the execution and delivery announcement or pendency of any letter of intent or preliminary or definitive agreement with respect to a such Parent Takeover Proposal and resolicitation and submission of new proxies in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition favor of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)Parent Stockholder Approval.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c), (d) and (ce) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(f) and fees, costs and expenses associated with compliance with applicable state securities laws in connection with the Merger shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); (ii) the Company Parent shall terminate this Agreement pursuant to Section 8.1(g)7.1(c)(iii) as a result of the failure by Company, its stockholders who are parties to the Stockholder Agreements, and each of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 4.3; or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b7.1(c)(iv); (iv) Parent (or in the case of Section 7.1(f)(ii), Company) shall terminate this Agreement pursuant to Section 7.1(c)(ii) or Section 8.1(f)(ii7.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) withdrawal, modification or Section 8.1(f)(ii)stockholder rejection, there shall have been (A) a Trigger Event with respect to the Company, Company or (B) a Takeover Proposal with respect to the Company, in either case Company which at the time of such termination withdrawal, modification or stockholder rejection shall not have been absolutely rejected by Company; or (v) Parent (or in the case of Section 7.1(b), Company) shall terminate this Agreement pursuant to Section 7.1(b), 7.1(c)(i) or 7.1(c)(v) due in whole or in part to any failure by Company to use its reasonable best efforts to perform and unconditionally withdrawn comply with all agreements and conditions required by this Agreement to be performed or abandoned complied with by Company prior to or on the other party theretoClosing Date or any failure by Company's affiliates to take any actions required to be taken hereby, thenand prior thereto 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 rejected by Company, then Company shall promptly reimburse Parent for all of the out-of-pocket costs and expenses incurred by Parent in each such eventconnection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel), and, in addition to any other remedies Parent may have, the Company shall promptly pay to Parent the sum of $10,300,000. (1c) in In the case of a termination event that (i) Parent shall terminate this Agreement pursuant to Section 7.1(c)(i) or 7.1(c)(v) under circumstances not described in Section 8.3(b)(i7.3(b)(v); or (ii) Parent shall terminate this Agreement pursuant to Section 7.1(c)(ii) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars 7.1(f)(ii) ($3,800,000), and (2) in the case of a termination under circumstances not described in Section 8.3(b)(iii7.3(b)(iv)), if within twelve 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 (12) months including, without limitation, the fees and expenses of a termination described its advisors, accountants and legal counsel); and, in Section 8.3(b)(iiithe event (A) any Takeover Proposal or any Trigger Event shall be is, within twelve months of the later of (x) such termination of this Agreement and (y) the payment of the above described expenses, consummated (as defined in Section 7.3(g)) by or with any person (or any letter affiliate of intent any person) that made a Takeover Proposal prior to termination of this Agreement or preliminary that caused a Trigger Event prior to such termination, or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000B) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the any other Takeover Proposal or Trigger Event shall be not described in clause (A) is consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%).as

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b) ), (c), (d), and (ce) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1 (c); , (d) or (f) or (ii) the Company shall terminate this Agreement pursuant to Section 8.1(g7.1(h); , then Company shall promptly reimburse Parent, but no more than $500,000 in the aggregate (or no more than $250,000 in the aggregate in the event Parent terminates this Agreement pursuant to Section 7.1(d) due to the non-satisfaction of the condition set forth in Section 6.2(h)(i)), for all of the out-of-pocket costs and expenses (iiiincluding, without limitation, the fees and expenses of its advisors, accountants and legal counsel and financing commitment fees) reasonably incurred by Parent in connection with this Agreement the transactions contemplated hereby and the due diligence review of Company by Parent. Any payment required to be paid pursuant to this Section 7.3(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 pursuant to Section 7.1. (c) In addition to any amount payable in accordance with Section 7.3(b), Company shall pay Parent a non-refundable fee equal to $1,500,000 but only if: (A) Parent shall terminate this Agreement pursuant to Section 7.1(f), or the Company shall terminate this Agreement pursuant to Section 8.1(b7.1(h); (B) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b7.1(f) or Section 8.1(f)(ii7.1(h), there shall have been either (Ax) a Trigger Event with respect to the Company, or (By) a Takeover an Acquisition Proposal with respect to Company which shall not have been rejected by Company and which has been determined by the CompanyBoard of Directors of Company to be a Superior Proposal, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), ; and (2C) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a such termination described in Section 8.3(b)(iii) any Takeover Proposal or any the transaction contemplated by such Trigger Event shall or Acquisition Proposal is consummated. Any payment required to be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by paid pursuant to this Section 8.3(b7.3(c) shall will be made by wire transfer of same day funds within two three (23) business days after termination in the case consummation of a termination by Parent such Acquisition Proposal or Trigger Event. (d) In the event that Company shall terminate this Agreement pursuant to Section 8.1(e7.1(e), prior to termination then Parent shall promptly reimburse Company, but no more than $500,000 in the event aggregate, for all of a termination the out-of-pocket costs and expenses (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel) reasonably incurred by Company in connection with this Agreement and the Company transactions contemplated hereby and the due diligence review of Parent by Company. Any payment required to be paid pursuant to this Section 8.1(g), and upon the earlier 7.3(d) will be made promptly by wire transfer of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal same day funds but in the no event of later than three (3) business days following such termination pursuant to Section 8.1(b7.1. (e) As used herein, a “Trigger Event” means the acquisition by any person or Section 8.1(f)(ii). Solely for purposes group of Section 8.3(b), all references to fifteen percent (15%) in the definition beneficial ownership of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty securities representing twenty-five percent (8525%) therein shall be reduced to sixty or more of the outstanding shares of any class of capital stock or voting securities of Company, or the commencement or public announcement of a tender or exchange offer, other publicly announced initiative or open market purchase program following the successful consummation of which such person or group would have beneficial ownership of securities representing twenty-five percent (6025%)) or more of the outstanding shares of any class of capital stock or voting power of Company. For purposes of this definition, the terms “person”, “group” and “beneficial ownership” have the meanings ascribed to them in the Exchange Act and the rules and regulations of the SEC thereunder.

Expenses and Termination Fees. (a) Except as provided in subsections (bSubject to Sections 5.15, 7.3(b), 7.3(c), 7.3(d) and (c7.3(e) of this Section 8.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); , 7.1(c)(ii) or 7.1(c)(iii), (ii) the Parent shall terminate this Agreement pursuant to Section 7.1(f)(ii), or Company shall terminate this Agreement pursuant to Section 8.1(g7.1(g)(ii); , following a failure of the shareholders of Company to approve this Agreement and, prior to the time of the meeting of Company's shareholders, there shall have been a Takeover Proposal which at the time of the meeting of Company's shareholders shall not have been (A) rejected by Company or (B) withdrawn by the third party making such Takeover Proposal, or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b7.1(c)(i) or Section 8.1(f)(ii) and, and prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), thereto there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally (x) rejected by Company or (y) withdrawn or abandoned by the other third party thereto, making such Takeover Proposal then, in each any such event, Company shall 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), and, in addition to any other remedies Parent may have, Company shall promptly pay to Parent the sum of twenty million dollars ($20,000,000); provided however, that in the event such Takeover Proposal is the -------- ------- initial public offering of the Company's equity securities pursuant to a registration statement under the Securities Act, the Company shall instead promptly pay to the Parent the sum of four million dollars ($4,000,000). (c) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(c)(i) or Section 7.1(f)(ii), or Company shall terminate this Agreement pursuant to Section 7.1(g)(ii), and, in either such event, Parent is not then entitled to receive the sum set forth in Section 7.3(b), 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); and, in the event any Takeover Proposal is consummated within twelve months of the later of (x) such termination of this Agreement and (y) the payment of the above-described expenses, Company shall promptly pay to Parent the additional sum of twenty million dollars (1) $20,000,000); provided however, that in the case event such Takeover -------- ------- Proposal is the initial public offering of the Company's equity securities pursuant to a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii)registration statement under the Securities Act, the Company shall instead promptly pay to the Parent the sum of three four million eight hundred thousand dollars ($3,800,0004,000,000). (d) In the event that Company shall terminate this Agreement pursuant to Section 7.1(d) and prior to the breach giving rise to such termination, and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Parent Takeover Proposal or shall have been publicly announced, then, in any Trigger Event such event, Parent shall be consummated or 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) and in addition to any letter of intent or preliminary or definitive agreement with respect thereto other remedies Company may have, Parent shall be signed, promptly pay to Company the sum of three four million eight hundred thousand dollars ($3,800,000) (provided4,000,000), howeverand, in the event that a Parent Takeover Proposal is consummated within twelve months after such termination of this Agreement, Parent shall pay to Company the amount payable by the Company shall be three additional sum of sixteen million five hundred thousand dollars ($3,500,00016,000,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or such Parent Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii)Proposal. Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Parent Takeover Proposal" shall be increased to forty percent (40%) and means any offer or proposal for, or any indication of interest in, a merger or other business combination involving Parent or the acquisition of a majority of the outstanding shares of capital stock of Parent, or all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)or substantially all of the assets of, Parent, or any other transaction inconsistent with consummation of the transactions contemplated hereby.

Expenses and Termination Fees. (a) Except as provided in subsections (bSubject to Sections 8.03(b) and (c) of this Section 8.38.03(c), whether or not the Merger ---------------- ------- is consummated, all costs and expenses incurred in connection with this Agreement Agreement, related agreements and documents and the transactions contemplated hereby and thereby (including the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate after a Silknet Takeover Proposal has been made to Silknet or to Silknet stockholders generally or otherwise has become publicly known, this Agreement shall be terminated by Kana pursuant to Section 8.1(e------- 8.01(c)(i) or Section 8.01(e)(ii) or by Silknet pursuant to Section 8.01(f)(ii) ---------- ------------------- ------------------- or by either party pursuant to Section 8.01(b); , or (ii) the Company shall terminate this Agreement shall be --------------- terminated by Kana pursuant to Section 8.1(g8.01(c)(ii) (other than as a result of a ------------------- change in the Silknet Board's recommendation based on a right of termination by Silknet under Section 8.01(d)(i); ), or Section 8.01(g), or (iii) Parent or the Company shall terminate this Agreement ------------------ --------------- shall be terminated by Silknet pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii8.01(i), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each any such --------------- event, in addition to any other remedies Parent Kana may have, the Company Silknet shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), Kana the sum of one hundred forty-eight million three million eight hundred thousand dollars ($3,800,000148,300,000), (x) which shall be due and payable in full upon termination of this Agreement (2) in the case of a termination described in of Silknet pursuant to Section 8.3(b)(iii------- 8.01(i), if within twelve ) and (12y) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three forty million eight hundred thousand dollars ($3,800,00040,000,000) (provided, however, that the amount payable by the Company of which shall be three million five hundred thousand dollars ($3,500,000) if due and -------- payable upon termination 52 of this Agreement and the Takeover Proposal or Trigger Event balance of which shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), due and payable upon the earlier of the consummation of a Trigger Event or Silknet Takeover Proposal or at any time prior to the execution and delivery first anniversary of any letter the termination of intent or preliminary or definitive agreement with respect to a Takeover Proposal this Agreement (in all other cases within the event scope of termination this Section 8.03(b)). All payments pursuant to Section 8.1(b8.03(b) shall --------------- --------------- be made by wire transfer of same-day funds to an account specified by Kana. (c) In the event that (i) after a Kana Takeover Proposal has been made to Kana or to Kana stockholders generally or otherwise has become publicly known, this Agreement shall be terminated by Silknet pursuant to Section ------- 8.01(d)(i) or Section 8.1(f)(ii). Solely for purposes of 8.01(f)(iii) or by Silknet pursuant to Section 8.3(b---------- -------------------- ------- 8.01(e)(iii) or by either party pursuant to Section 8.01(b), all references or (ii) this ------------ --------------- Agreement shall be terminated by Silknet pursuant to fifteen percent Section 8.01(d)(ii) (15%) other ------------------- than as a result of a change in the definition Kana Board's recommendation based on the occurrence of the term "Takeover Proposal" shall be increased a circumstance giving rise to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%).a right of termination by Kana under

Expenses and Termination Fees. (a1) Except as provided in subsections (b) and (c) of this Section 8.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with If 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 expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally is validly terminated by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii‎Section 7.2(1)(c)(ii) to enter into a written definitive agreement with a Third Party or by the Company shall terminate this Agreement Parent pursuant to Section 8.1(g‎Section 7.2(1)(d)(ii); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay or cause to be paid to the Parent in immediately available funds $75,000,000 (1) in each case, such fee, the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii“Company Termination Fee”), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e)the Parent, prior to within two Business Days after such termination and, in the event case of a termination by the Company, immediately before and as a condition to such termination. (2) If, (A) this Agreement is validly terminated by (1) the Parent or the Company pursuant to Section 8.1(g(x) ‎Section 7.2(1)(b)(iii) and at the time of such termination the Required Approval has not been received or (y) ‎Section 7.2(1)(b)(i) or (2) by the Parent pursuant to ‎Section 7.2(1)(d)(i), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or (B) following the execution and delivery of any letter this Agreement and prior to such valid termination of intent this Agreement, a bona fide Acquisition Proposal shall have been publicly announced or preliminary publicly disclosed and not publicly withdrawn or otherwise abandoned at least two Business Days prior to such termination of this Agreement, and (C) within 12 months following such valid termination of this Agreement, either an Acquisition Proposal is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Proposal, then the Company shall concurrently with respect such consummation or entry into a definitive agreement, pay, or cause to a Takeover Proposal be paid, to the Parent the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii)Parent. Solely for For purposes of Section 8.3(b), this ‎Section 8.2(2) all references to fifteen “twenty percent (1520%) )” in the definition of the term "Takeover “Acquisition Proposal" ” shall be increased deemed to forty be references to “fifty percent (4050%).” (3) If this Agreement is terminated by the Parent or the Company pursuant to (i) Section 7.2(1)(b)(iii) and, at the time of such termination, (A) any of the conditions set forth in Section 6.1(5) (to the extent the applicable Order arises from or relates to Competition Laws or Foreign Investment Laws), Section 6.1(3) or Section 6.1(4) (such conditions in this clause (A), the “Applicable Conditions”) shall not have been satisfied, (B) a breach by the Company of its obligations under ‎Section 4.2 has not been the principal cause of the failure of any of the Applicable Conditions to not be satisfied and (C) all other conditions set forth in Sections ‎6.1 (including ‎Section 6.1(5) to the extent the applicable Order does not arise from or relate to Competition Laws or Foreign Investment Laws) and ‎6.2 shall have been satisfied (other than conditions that by their nature are to be satisfied at the Effective Time (assuming for the purpose of determining whether such other conditions set forth in Sections ‎6.1 and ‎6.2 have been satisfied in this clause, that all references to eighty five percent (85%) therein the "Effective Time" in such other conditions in Sections ‎6.1 and ‎6.2 shall be reduced deemed to sixty percent refer instead to the time of termination of this Agreement)) or waived in accordance with this Agreement, other than those conditions the failure of which to be satisfied was materially contributed to by a breach by Parent or Purchaser of their representations, warranties, covenants or agreements contained in this Agreement, or (60%ii) Section 7.2(1)(b)(ii) (to the extent the applicable Order arises from or relates to Competition Laws or Foreign Investment Laws), and, at the time of such termination, a breach by the Company of its obligations under ‎Section 4.2 has not been the principal cause of such Order or such imposition of such Order, then Parent shall, within three Business Days following any such termination, pay to the Company, in cash by wire transfer of immediately available funds to the account designated in writing by the Company, $150,000,000 (such fee, the "Parent Termination Fee"). (4) Each Party agrees that (i) the agreements contained in this ‎Section 8.2 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other Parties would not enter into this Agreement and (ii) in light of the difficulty of accurately determining actual damages with respect to the foregoing, the right to payment of the Company Termination Fee or the Parent Termination Fee constitutes a reasonable estimate of the losses, damages, claims, costs or expenses that will be suffered by reason of any such valid termination of this Agreement and constitutes liquidated damages (and not a penalty) (and that neither such amount is excessive or unreasonably large, given the Parties’ intent and dealings with each other), and for greater certainty is not and is not intended to be an inducement, refund, reimbursement or assistance to either Party for entering into this Agreement, and hereby irrevocably waives, and agrees not to assert in any Proceeding arising out of or relating to this Agreement, any claim to the contrary. (5) Notwithstanding anything herein to the contrary, (i) the Parent and the Purchaser agree that, except in the case of fraud or any material and willful breach of this Agreement by the Company, upon any valid termination of this Agreement under circumstances where the Company Termination Fee is payable by the Company pursuant to this ‎Section 8.2 and such Company Termination Fee is paid in full, the receipt by the Parent of the Company Termination Fee shall be deemed to be liquidated damages and the sole and exclusive remedy of the Parent and the Purchaser in connection with this Agreement or the transactions contemplated hereby and neither the Parent nor the Purchaser shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders, Affiliates or Representatives in connection with this Agreement or the transactions contemplated hereby and (ii) the Company agrees that, except in the case of fraud or any material and willful breach of this Agreement by the Parent or the Purchaser, upon any valid termination of this Agreement under circumstances where the Parent Termination Fee is payable by the Parent pursuant to this ‎Section 8.2 and such fee is paid in full, the receipt by the Company of the Parent Termination Fee shall be deemed to be liquidated damages and the sole and exclusive remedy of the Company in connection with this Agreement or the transactions contemplated hereby and the Company shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Parent or any of Parent’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, stockholders, Affiliates or Representatives in connection with this Agreement or the transactions contemplated hereby. Each Party acknowledges and agrees that in no event shall the Company or Parent, as applicable, be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasion. For the avoidance of doubt, nothing in this ‎Section 8.2 shall limit any remedies of the Parent or the Purchaser prior to any such valid termination of this Agreement under circumstances where the Company Termination Fee or the Parent Termination Fee is payable pursuant to this ‎Section 8.2, including specific performance pursuant to ‎Section 8.6. In no event will any Party be entitled to receive both (x) a grant of specific performance which results in the consummation of the Effective Time as contemplated in this Agreement and (y) payment of the Company Termination Fee or the Parent Termination Fee, as applicable.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c), (d) and (ce) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(f) and fees, costs and expenses associated with compliance with applicable state securities laws in connection with the Merger shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); (ii) the Company Parent shall terminate this Agreement pursuant to Section 8.1(g)7.1(c)(iii) as a result of the failure by Company, its stockholders who are parties to the Stockholder Agreements, and each of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 4.3; or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b7.1(c)(iv); (iv) Parent (or in the case of Section 7.1(f)(ii), Company) shall terminate this Agreement pursuant to Section 7.1(c)(ii) or Section 8.1(f)(ii7.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) withdrawal, modification or Section 8.1(f)(ii)stockholder rejection, there shall have been (A) a Trigger Event with respect to the Company, Company or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%).with

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c) and (cf) of this Section 8.3, whether or not the Offer or 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 fees, costs and expenses of its advisers, accountants brokers, finders, agents, accountants, bankers and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) the Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that Parent shall pay the amount payable filing fee for the premerger notification relating to the transactions contemplated by this Agreement under the HSR Act; and, provided further, (i) that the Company and Parent shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity share equally all fees and expenses, other than attorneys’ fees, incurred in connection with: (A) the person filing, printing and mailing of the Offer Documents, Schedule 14D-9 and the Proxy Statement and any amendments or entity making supplements thereto, and (B) the Takeover Proposal retention of any information agent, depositary or Trigger Event which originally triggered other service provider in connection with the right of termination under Section 8.1(bOffer; and (ii) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination event that this Agreement is terminated: (A)(1) by Parent pursuant to Section 8.1(e), and (2) at or prior to the time of such termination in the event of a termination an Alternative Proposal shall have been disclosed, announced, commenced, submitted or made, or (B) by Parent pursuant to Section 8.1(g)(i) or by the Company pursuant to Section 8.1(g8.1(h), then (without limiting any obligation of the Company to pay any fee payable pursuant to Section 8.3(b) or Section 8.3(c)), in each of clause (A) and upon (B) of this sentence, the Company shall make a non-refundable cash payment to Parent, at the time specified in the next sentence, in an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement, the Support Agreements, the Debt Financing Commitment, the Sponsor Financing Commitment and otherwise in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement and the Support Agreements, subject to a maximum amount of $2,000,000 (it being understood, however, that Parent’s other remedies, if any, shall not be affected by any payments under this Section 8.3). In the case of termination of this Agreement by the Company pursuant to Section 8.1(h), any non-refundable payment required to be made pursuant to this clause (ii) of this Section 8.3(a) shall be made by the Company prior to or at the time of such termination; and in the case of termination of this Agreement by Parent pursuant to Section 8.1(e) or Section 8.1(g)(i), any non-refundable payment required to be made pursuant to this clause (ii) of this Section 8.1(a) shall be made by the Company within three (3) Business Days. (b) If this Agreement is terminated by Parent pursuant to Section 8.1(e) and: (i) at or prior to the time of such termination an Alternative Proposal shall have been disclosed, announced, commenced, submitted or made, and (ii) within 12 months after the date of any such termination, an Alternative Transaction (whether or not relating to such Alternative Proposal) is consummated or a definitive agreement contemplating an Alternative Transaction (whether or not relating to such Alternative Proposal) is executed, then the Company shall pay to Parent, in cash at the earlier of the consummation of a Trigger Event or Takeover Proposal time such Alternative Transaction is consummated or the execution time such definitive agreement is executed, a non-refundable fee in the amount of $2,500,000. (c) If this Agreement is terminated by Parent pursuant to Section 8.1(g)(i) or by the Company pursuant to Section 8.1(h), then the Company shall pay to Parent, in cash at the time specified in the next sentence (in addition to the amounts payable pursuant to Section 8.3(a)), a non-refundable fee in the amount of $2,500,000. In the case of termination of this Agreement by Parent pursuant to Section 8.1(g)(i), the fee referred to in the preceding sentence shall be paid by the Company within two (2) Business Days after such termination; and delivery in the case of termination of this Agreement by the Company pursuant to Section 8.1(h), the fee referred to in the preceding sentence shall be paid by the Company at or prior to the time of such termination. (d) If this Agreement is terminated by Parent, Merger Sub or the Company pursuant to Section 8.1(c) or Section 8.1(f) and (i) at or prior to the time of such termination an Alternative Proposal shall have been disclosed, announced, commenced, submitted or made, and (ii) within 12 months after the date of any letter of intent such termination, an Alternative Transaction (whether or preliminary not relating to such Alternative Proposal) is consummated or a definitive agreement contemplating an Alternative Transaction (whether or not relating to such Alternative Proposal) is executed, then the Company shall pay to Parent, in cash at the earlier of the time such Alternative Transaction is consummated or the time such definitive agreement is executed, a non-refundable fee in the amount of $4,500,000. (e) Each of Parent, Merger Sub and the Company acknowledges and agrees that the agreements contained in Sections 8.3(a), (b), (c), and (d) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. (f) If this Agreement is terminated by the Company pursuant to Section 8.1(i), the Parent shall pay to the Company in cash, within two (2) Business Days after such termination, a non-refundable fee in the amount of $6,000,000 (the “Reverse Termination Fee”). Notwithstanding anything to the contrary contained in this Agreement, if this Agreement is terminated as set forth in Section 8.1(i), the Company’s right to receive the Reverse Termination Fee pursuant to this Section 8.3(f) shall be the sole and exclusive remedy of the Company and the Company Subsidiaries and their respective shareholders and Affiliates against Parent or any of its Related Persons (as defined below) for, and the Company and the Company Subsidiaries (on their own behalf and on behalf of their respective shareholders and Affiliates) shall be deemed to have waived all other remedies (including equitable remedies) with respect to, (i) any failure of the Offer or the Merger to be consummated, (ii) any breach by Parent or Merger Sub of its obligation to consummate the Offer and the Merger or any other covenant, obligation, representation, warranty or other provision set forth in this Agreement. Upon payment of the Reverse Termination Fee pursuant to this Section 8.3(f), neither Parent nor any of its Related Persons shall have any further liability or obligation (under this Agreement or otherwise) relating to or arising out of this Agreement or any of the transactions contemplated by this Agreement, and in no event shall the Company or the Company Subsidiaries (and the Company shall ensure that their respective Affiliates do not) seek to recover any money damages or losses, or seek to pursue any other recovery, judgment, damages or remedy (including any equitable remedy) of any kind, in connection with this Agreement or the transactions contemplated by this Agreement. The parties agree that the Reverse Termination Fee and the agreements contained in this Section 8.3(f) are an integral part of the Offer and the Merger and the other transactions contemplated by this Agreement and that the Reverse Termination Fee constitutes liquidated damages and not a Takeover Proposal penalty. In addition, notwithstanding anything to the contrary contained in this Agreement, regardless of whether or not this Agreement is terminated, except for Parent’s obligation to pay the Company the Reverse Termination Fee if and when such Reverse Termination Fee becomes payable by Parent to the Company pursuant to this Section 8.3(f): (1) neither Parent nor any of Parent’s Related Parties shall have any liability for (x) any inaccuracy in any representation or warranty set forth in Section 4.5 or any inaccuracy in any other representation or warranty relating to the Debt Financing (regardless of whether such representation or warranty refers specifically to the Debt Financing), or (y) any breach of any of the Parent Financing Covenants; and (2) in the event of termination pursuant any Financing Failure, neither Parent nor any of Parent’s Related Parties shall have any liability of any nature (for any breach of this Agreement or otherwise) to Section 8.1(b) the Company and the Company Subsidiaries or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition any shareholder or Affiliate of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)Company or the Company Subsidiaries.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c), (d) and (ce) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(f) and fees, costs and expenses associated with compliance with applicable state securities laws in connection with the Merger shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); (ii) the Company Parent shall terminate this Agreement pursuant to Section 8.1(g)7.1(c)(iii) as a result of the failure by Company, its stockholders who are parties to the Stockholder Agreements, and each of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 4.3; or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b7.1(c)(iv); (iv) Parent (or in the case of Section 7.1(f)(ii), Company) shall terminate this Agreement pursuant to Section 7.1(c)(ii) or Section 8.1(f)(ii7.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) withdrawal, modification or Section 8.1(f)(ii)stockholder rejection, there shall have been (A) a Trigger Event with respect to the Company, Company or (B) a Takeover Proposal with respect to the Company, in either case Company which at the time of such termination withdrawal, modification or stockholder rejection shall not have been absolutely rejected by Company; or (v) Parent (or in the case of Section 7.1(b), Company) shall terminate this Agreement pursuant to Section 7.1(b), 7.1(c)(i) or 7.1(c)(v) due in whole or in part to any failure by Company to use its reasonable best efforts to perform and unconditionally withdrawn comply with all agreements and conditions required by this Agreement to be performed or abandoned complied with by Company prior to or on the other party theretoClosing Date or any failure by Company's affiliates to take any actions required to be taken hereby, thenand prior thereto 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 rejected by Company, then Company shall promptly reimburse Parent for all of the out-of-pocket costs and expenses incurred by Parent in each such eventconnection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel), and, in addition to any other remedies Parent may have, the Company shall promptly pay to Parent the sum of $10,300,000. (1c) in In the case of a termination event that (i) Parent shall terminate this Agreement pursuant to Section 7.1(c)(i) or 7.1(c)(v) under circumstances not described in Section 8.3(b)(i7.3(b)(v); or (ii) Parent shall terminate this Agreement pursuant to Section 7.1(c)(ii) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars 7.1(f)(ii) ($3,800,000), and (2) in the case of a termination under circumstances not described in Section 8.3(b)(iii7.3(b)(iv)), if within twelve 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 (12) months including, without limitation, the fees and expenses of a termination described its advisors, accountants and legal counsel); and, in Section 8.3(b)(iiithe event (A) any Takeover Proposal or any Trigger Event shall be is, within twelve months of the later of (x) such termination of this Agreement and (y) the payment of the above described expenses, consummated (as defined in Section 7.3(g)) by or with any person (or any letter affiliate of intent any person) that made a Takeover Proposal prior to termination of this Agreement or preliminary that caused a Trigger Event prior to such termination, or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000B) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the any other Takeover Proposal or Trigger Event not described in clause (A) is consummated (as defined in Section 7.3(g)) within six months of the later of (x) such termination of this Agreement and (y) the payment of the above-described expenses, Company shall be consummated with a person or entity other than promptly pay to Parent the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right sum of termination $10,300,000 (less any amounts paid by Company to Parent under Section 8.1(b7.3(b)). (d) In the event that Company shall terminate this Agreement pursuant to Section 7.1(d) 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%, or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of NEC Corporation, 19.9%, or more, or commences a termination by Parent pursuant to Section 8.1(e)tender or exchange offer, prior to termination 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%, or in the event case of NEC Corporation, 19.9%, or more, of the voting power of Company; provided, however, a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing 15%, or in the case of NEC Corporation, 19.9%, 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, directly or indirectly, relating to a merger or other business combination involving Company or the sale or transfer of a termination by significant portion of assets (excluding the Company pursuant to sale or disposition of assets in the ordinary course of business) of Company; (iii) forming, joining or in any way participating in any "group" within the meaning of Section 8.1(g), and upon the earlier 13(d)(3) of the consummation Exchange Act with respect to any voting securities of Company, directly or indirectly, relating to a merger or other business combination involving Company 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 Company; or (iv) otherwise acting, alone or in concert with others, to seek control of Company or to seek to control or influence the management or policies of Company. (f) For purposes of this Agreement, "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 in the case of NEC Corporation, 19.9%, 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. (g) For purposes of Section 7.3(c) above, (A) "consummation" of a Takeover Proposal shall occur on the date a written agreement is entered into with respect to a merger or other business combination involving Company or the acquisition of 15%, or in the case of NEC Corporation, 19.9%, or more of the outstanding shares of capital stock of Company, or sale or transfer of any material assets (excluding the sale or disposition of assets in the ordinary course of business) of Company or any of its subsidiaries and (B) "consummation" of a Trigger Event shall occur on the date any Person (other than any stockholder which currently owns 15% or Takeover Proposal more of the outstanding shares of capital stock of Company provided such shareholder does not increase its ownership) or the execution and delivery any of any letter of intent its affiliates or preliminary associates would beneficially own securities representing 15%, or definitive agreement with respect to a Takeover Proposal in the event case of termination pursuant to Section 8.1(b) NEC Corporation, 19.9%, or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition more of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)voting power of Company, following a tender or exchange offer.

Expenses and Termination Fees. (a) Except as provided in subsections Subject to Sections 7.3(b), (bc) and (c) of this Section 8.3d), whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: that this Agreement is terminated in accordance with Section 7.1(a)(iii), (iiv)(A), (iv)(B) Parent shall or (v), then the party entitled to terminate this Agreement pursuant to Section 8.1(e); such provisions (iithe "Terminating Party") the Company ----------------- shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned be paid by the other party theretonon-Terminating Party, thenwithin ten (10) business days of the termination thereof, in each such eventthe sum of $100,000 (the "Termination Fee"). Furthermore, in addition to any other remedies Parent may have, --------------- (x) the Company shall pay to Parent the Termination Fee if the Company terminates this Agreement pursuant to Section 7.1(a)(iv)(C); (1y) 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 by either party hereto prior to the 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, to willfully avoid consummating the transactions contemplated by this Agreement. 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 termination described 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 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 entitled to obtain an affirmative injunction, in any court of competent jurisdiction, which would enjoin the consummation of any such sale of the Selling Company's shares or assets until the Break-Up Fee, with interest, is paid in full. Upon payment of the Break-Up Fee (together with any accrued interest specified in this Section 7.3(c) and any attorney's fees specified in Section 8.3(b)(i8.11) or and the Termination Fee, if applicable in accordance with Section 8.3(b)(ii7.3(b), notwithstanding Section 7.2, the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal Selling Company shall have no further liability or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement obligation with respect thereto shall be signed, to this Agreement; provided that if the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that Selling Company commences an action against the amount payable by non-Selling Company then the non-Selling Company shall be three million five hundred thousand dollars ($3,500,000) if entitled to assert any and all counterclaims hereunder and the Takeover Proposal or Trigger Event Selling Company shall be consummated liable for all damages in connection with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination such counterclaims including attorney's fees under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)8.11 hereof.

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c), (d) and (ce) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(f) and fees, costs and expenses associated with compliance with applicable state securities laws in connection with the Merger shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); (ii) the Company Parent shall terminate this Agreement pursuant to Section 8.1(g)7.1(c)(iii) as a result of the failure by Company, its stockholders who are parties to the Stockholder Agreements, and each of their respective directors, officers, employees, affiliates and controlling persons, or any person authorized by such persons, to comply with the requirements of Section 4.3; or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b7.1(c)(iv); (iv) Parent (or in the case of Section 7.1(f)(ii), Company) shall terminate this A-40 41 Agreement pursuant to Section 7.1(c)(ii) or Section 8.1(f)(ii7.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) withdrawal, modification or Section 8.1(f)(ii)stockholder rejection, there shall have been (A) a Trigger Event with respect to the Company, Company or (B) a Takeover Proposal with respect to the Company, in either case Company which at the time of such termination withdrawal, modification or stockholder rejection shall not have been absolutely rejected by Company; or (v) Parent (or in the case of Section 7.1(b), Company) shall terminate this Agreement pursuant to Section 7.1(b), 7.1(c)(i) or 7.1(c)(v) due in whole or in part to any failure by Company to use its reasonable best efforts to perform and unconditionally withdrawn comply with all agreements and conditions required by this Agreement to be performed or abandoned complied with by Company prior to or on the other party theretoClosing Date or any failure by Company's affiliates to take any actions required to be taken hereby, thenand prior thereto 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 rejected by Company, then Company shall promptly reimburse Parent for all of the out-of-pocket costs and expenses incurred by Parent in each such eventconnection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of its advisors, accountants and legal counsel), and, in addition to any other remedies Parent may have, the Company shall promptly pay to Parent the sum of $25,000,000. (1c) in In the case of a termination event that (i) Parent shall terminate this Agreement pursuant to Section 7.1(c)(i) or 7.1(c)(v) under circumstances not described in Section 8.3(b)(i7.3(b)(v); or (ii) Parent shall terminate this Agreement pursuant to Section 7.1(c)(ii) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars 7.1(f)(ii) ($3,800,000), and (2) in the case of a termination under circumstances not described in Section 8.3(b)(iii7.3(b)(iv)), if within twelve 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 (12) months including, without limitation, the fees and expenses of a termination described its advisors, accountants and legal counsel); and, in Section 8.3(b)(iiithe event (A) any Takeover Proposal or any Trigger Event shall be is, within twelve months of the later of (x) such termination of this Agreement and (y) the payment of the above described expenses, consummated (as defined in Section 7.3(g)) by or with any person (or any letter affiliate of intent any person) that made a Takeover Proposal prior to termination of this Agreement or preliminary that caused a Trigger Event prior to such termination, or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000B) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the any other Takeover Proposal or Trigger Event not described in clause (A) is consummated (as defined in Section 7.3(g)) within six months of the later of (x) such termination of this Agreement and (y) the payment of the above-described expenses, Company shall be consummated with a person or entity other than promptly pay to Parent the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right additional sum of termination $25,000,000 (less any amounts paid by Company to Parent under Section 8.1(b7.3(b)). (d) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by In the event that Company shall terminate this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent Agreement pursuant to Section 8.1(e), prior to termination in the event of a termination by the 7.1(d) Parent shall promptly reimburse Company pursuant to Section 8.1(g), and upon the earlier 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% 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% or more, of the voting power of Company; provided, however, a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing 15% or Takeover Proposal more of Company if such Person has acquired such securities not with the purpose nor with the effect of changing or influencing the execution and delivery control of Company, nor in connection with or as a participant in any letter of intent transaction having such purpose or preliminary or definitive agreement 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 A-41 42 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, directly or indirectly, relating to a Takeover Proposal merger or other business combination involving Company or the sale or transfer of a significant portion of assets (excluding the sale or disposition of assets in the event ordinary course of termination pursuant business) 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 Section 8.1(bany voting securities of Company, directly or indirectly, relating to a merger or other business combination involving Company 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 Company; or Section 8.1(f)(ii). Solely for (iv) otherwise acting, alone or in concert with others, to seek control of Company or to seek to control or influence the management or policies of Company. (f) For purposes of Section 8.3(b)this Agreement, all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)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.

Expenses and Termination Fees. (a) 7.4.1 Except as otherwise provided in subsections (b) and (c) of this Section 8.3, whether or not the Merger is consummatedherein, all fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including the fees and expenses Plan of its advisers, accountants and legal counsel) Arrangement shall be paid by the party Party incurring such expensefees, except costs or expenses. 7.4.2 If a Termination Fee Event occurs, Xxxxxxxxx shall pay Alamos (by wire transfer of immediately available funds) the Termination Fee in accordance with Section 7.4.4. 7.4.3 For the purposes of this Agreement, “Termination Fee Event” means the termination of this Agreement: (a) by Alamos, pursuant to: (i) Section 8.2.1(c)(i); (ii) Section 8.2.1(c)(iii), provided that expenses incurred in connection with printing the proxy materials and breach is a material breach of a covenant; (iii) Section 8.2.1(c)(iv), provided that the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent.breach is a material breach; or (iv) Section 8.2.1(c)(vi); (b) In the event that: (i) Parent shall terminate this Agreement by Xxxxxxxxx, pursuant to Section 8.1(e8.2.1(d)(i); or (iic) the Company shall terminate this Agreement by Alamos, pursuant to Section 8.1(g8.2.1(b)(i); , or (iiiSection 8.2.1(c)(v) Parent or the Company shall terminate this Agreement by either Party pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii8.2.1(b)(iii), there shall have been (A) a Trigger Event with respect to the Companybut only if, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of this paragraph (c), prior to the earlier of the termination of this Agreement or the holding of the Xxxxxxxxx Meeting, a bona fide Acquisition Proposal, or the intention to make an Acquisition Proposal, with respect to Xxxxxxxxx shall have been publicly announced by any person (other than Alamos, Subco or any of its affiliates) and within six (6) months following the date of such termination: (i) such Acquisition Proposal is consummated; or (ii) Xxxxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of, or the Xxxxxxxxx Board approves or recommends, such Acquisition Proposal which is subsequently consummated at any time thereafter; provided that, for the purposes of this Section 7.4.3(c), all references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”. 7.4.4 If a Termination Fee Event occurs due to a termination described in of this Agreement by Xxxxxxxxx pursuant to Section 8.3(b)(i8.2.1(d)(i), or by Alamos pursuant to Section 8.2.1(c)(i) or Section 8.3(b)(ii8.2.1(c)(vi), the sum Termination Fee shall be payable simultaneously with the occurrence of three million eight hundred thousand dollars ($3,800,000such Termination Fee Event. If a Termination Fee Event occurs due to a termination of this Agreement by Alamos pursuant to Section 8.2.1(c)(iii) or 8.2.1(c)(iv), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event Termination Fee shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination following such Termination Fee Event. If a Termination Fee Event occurs in the case circumstances set out in Section 7.4.3(c), the Termination Fee shall be payable within two business days following the closing of a termination by Parent the applicable transaction referred to therein. 7.4.5 If this Agreement is terminated pursuant to Section 8.1(e8.2.1(b)(iii), Xxxxxxxxx shall pay or cause to be paid to Alamos all of the out-of-pocket fees and expenses of Alamos (the “Alamos Expense Reimbursement Payment”) incurred in connection with the transactions provided for in this Agreement, subject to a maximum of $500,000 in the aggregate, in immediately available funds by way of wire transfer prior to termination in the event of a termination by the Company such termination; provided, however, that any such Alamos Expense Reimbursement Payment shall be credited against any Termination Fee payable to Alamos. If this Agreement is terminated pursuant to Section 8.1(g8.2.1(d)(iii), Alamos shall pay or cause to be paid to Xxxxxxxxx all of the out-of-pocket fees and expenses of Xxxxxxxxx (the “Xxxxxxxxx Expense Reimbursement Payment”) incurred in connection with the transactions provided for in this Agreement, subject to a maximum of $500,000 in the aggregate, in immediately available funds by way of wire transfer prior to such termination. 7.4.6 Each of the Parties acknowledges that the agreements contained in this Section 7.4 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 7.4 are payments of liquidated damages which are a genuine pre-estimate of the damages, which the Party entitled to such damages 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. Xxxxxxxxx irrevocably waives any right it may have to raise as a defense that any such liquidated damages are excessive or punitive. For greater certainty, each Party agrees that, upon any termination of this Agreement under circumstances where Alamos is entitled to the Termination Fee or Alamos Expense Reimbursement Payment and such Termination Fee or Alamos Expense Reimbursement Payment is paid in full, Alamos shall be precluded from any other remedy against Xxxxxxxxx at law or in equity or otherwise (including, without limitation, an order for specific performance), and upon shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against Xxxxxxxxx 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 earlier transactions contemplated hereby. 7.4.7 Nothing in this Section 7.4 shall preclude a Party from seeking injunctive relief to restrain any breach or threatened breach of the consummation of a Trigger Event covenants or Takeover Proposal agreements set forth in this Agreement or the execution and delivery otherwise to obtain specific performance of any letter such covenants or agreements, without the necessity of intent posting bond or preliminary or definitive agreement with security in connection therewith. 7.4.8 In no event shall Xxxxxxxxx be obligated to pay to Alamos an amount in respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)termination of this Agreement that is, in aggregate, in excess of the Termination Fee.

Expenses and Termination Fees. (a) Except as provided in subsections (bSubject to Sections 5.9, 5.17, 7.3(b) and (c) of this Section 8.37.3(c), whether or not the Merger Acquisition is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent Buyer shall terminate this Agreement pursuant to Section 8.1(e7.1(c)(ii); , 7.1(c)(iii), 7.1(e) or 7.1(f)(ii), (ii) the Company Seller shall terminate this Agreement pursuant to Section 8.1(g7.1(g)(ii); , or (iii) Parent or the Company Buyer shall terminate this Agreement pursuant to Section 8.1(b7.1(c)(i), due in whole or in part to any failure by Seller to perform and comply in all respects with its agreements set forth in Article V of this Agreement, then Seller shall promptly (but in no event later than five (5) business days after the occurrence of the event giving Buyer the right to so terminate this Agreement) pay to Buyer the amount of $7,500,000. (c) In the event that this Agreement is terminated pursuant to any of the provisions described in Section 7.3(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b7.1(c)(i) or Section 8.1(f)(ii)for any reason, there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Companyand, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to event any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three million eight hundred thousand dollars ($3,800,000), and (2) in the case of a termination described in Section 8.3(b)(iii), if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000) (provided, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000) if the Takeover Proposal or Trigger Event is consummated (as defined in Section 7.3(f) hereof) within twelve months of the later of (x) such termination of this Agreement and (y) the payment of the expenses described in Section 7.3(a), Seller shall be consummated with promptly pay to Buyer the additional amount of $7,500,000. (d) As used herein, a person "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 10% or entity more, or commences a tender or exchange offer following the successful consummation of which the offeror and its affiliate would beneficially own securities representing 10% or more, of the voting power of Seller. (e) For purposes of this Agreement, "Takeover Proposal" means any ----------------- offer or proposal for, or any indication of interest in, a merger or other business combination involving Seller or the acquisition of 20% or more of the outstanding shares of capital stock of Seller, or a significant portion of the Assets, other than the person or entity making the transactions contemplated by this Agreement. (f) For purposes of Section 7.3(c) above, (A) "consummation" of a ------------ Takeover Proposal or Trigger Event which originally triggered shall occur on the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of date a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive written agreement is entered into with respect to a Takeover Proposal merger or other business combination involving Seller or the acquisition of 20% or more of the outstanding shares of capital stock of Seller, or sale or transfer of any material assets (excluding the sale or disposition of assets in the event ordinary course of termination pursuant to Section 8.1(bbusiness) of Seller and (B) "consummation" of a ------------ Trigger Event shall occur on the date any Person (other than any stockholder which currently owns 10% or more of the outstanding shares of capital stock of Seller provided that such stockholder does not acquire additional shares that would otherwise have constituted a Trigger Event) or Section 8.1(f)(ii). Solely for purposes any of Section 8.3(b), all references to fifteen percent (15%) in the definition its affiliates or associates would beneficially own securities representing 10% or more of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)voting power of Seller, following a tender or exchange offer.

Expenses and Termination Fees. (a) Except as provided in subsections (bSubject to Sections 8.03(b) and (c) of this Section 8.38.03(c), whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement Agreement, related agreements and documents and the transactions contemplated hereby and thereby (including the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials and the Offer Documents, registration, and filing fees incurred in connection with the Offer Documents, the Schedule 14D-9 and the proxy materials shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate after a Silknet Takeover Proposal has been made to Silknet or to Silknet stockholders generally or otherwise has become publicly known, this Agreement shall be terminated by Kana pursuant to Section 8.1(e8.01(c)(i) or Section 8.01(e)(ii) or by Silknet pursuant to Section 8.01(f)(ii) or by either party pursuant to Section 8.01(b); , or (ii) the Company shall terminate this Agreement shall be terminated by Kana pursuant to Section 8.1(g8.01(c)(ii) (other than as a result of a change in the Silknet Board's recommendation based on a right of termination by Silknet under Section 8.01(d)(i); ), or Section 8.01(g), or (iii) Parent or the Company shall terminate this Agreement shall be terminated by Silknet pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii8.01(i), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each any such event, in addition to any other remedies Parent Kana may have, the Company Silknet shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), Kana the sum of one hundred forty-eight million three million eight hundred thousand dollars ($3,800,000148,300,000), (x) which shall be due and payable in full upon termination of this Agreement (2) in the case of termination by Silknet pursuant to Section 8.01(i)) and (y) forty 50 57 million dollars ($40,000,000) of which shall be due and payable upon termination of this Agreement and the balance of which shall be due and payable upon the consummation of a Silknet Takeover Proposal at any time prior to the first anniversary of the termination described of this Agreement (in all other cases within the scope of this Section 8.3(b)(iii8.03(b)). All payments pursuant to Section 8.03(b) shall be made by wire transfer of same-day funds to an account specified by Kana. (c) In the event that (i) after a Kana Takeover Proposal has been made to Kana or to Kana stockholders generally or otherwise has become publicly known, this Agreement shall be terminated by Silknet pursuant to Section 8.01(d)(i) or Section 8.01(f)(iii) or by Silknet pursuant to Section 8.01(e)(iii) or by either party pursuant to Section 8.01(b), if within twelve or (12ii) months this Agreement shall be terminated by Silknet pursuant to Section 8.01(d)(ii) (other than as a result of a change in the Kana Board's recommendation based on the occurrence of a circumstance giving rise to a right of termination described in by Kana under Section 8.3(b)(iii8.01(c)(i)), or Section 8.01(h), or (iii) any Takeover Proposal or any Trigger Event this Agreement shall be consummated or terminated by Kana pursuant to Section 8.01(j), then, in any letter of intent or preliminary or definitive agreement with respect thereto such event, in addition to any other remedies Silknet may have, Kana shall be signed, pay to Silknet the sum of one hundred forty-eight million three million eight hundred thousand dollars ($3,800,000148,300,000), (x) (provided, however, that the amount payable by the Company which shall be three due and payable in full upon termination of this Agreement (in the case of termination by Kana pursuant to Section 8.01(j)) and (y) forty million five hundred thousand dollars ($3,500,00040,000,000) if of which shall be due and payable upon termination of this Agreement and the balance of which shall be due and payable upon the consummation of a Kana Takeover Proposal or Trigger Event shall be consummated with a person or entity at any time prior to the first anniversary of the termination of this Agreement (in all other than cases within the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right scope of termination under this Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity8.03(c)). The All payments required by this pursuant to Section 8.3(b8.03(c) shall be made within two by wire transfer of same-day funds to an account specified by Silknet. (2d) business days after termination Each party acknowledges that the agreements contained in this Section 8.03 are an integral part of the case of transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if a termination by Parent party fails promptly to pay the amount due pursuant to this Section 8.1(e)8.03 and, prior in order to termination obtain such payment, the other party commences a suit which results in a judgment or settlement for the event of a termination by fee set forth in this Section 8.03, the Company pursuant liable party shall pay to Section 8.1(g)the party commencing such suit its costs and expenses (including attorneys' fees and expenses) in connection with such suit, and upon together with interest on the earlier amount of the consummation fee at the prime rate of a Trigger Event or Takeover Proposal or Citibank, N.A. in effect on the execution and delivery of any letter of intent or preliminary or definitive agreement with respect date such payment was required to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii). Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)made.

Expenses and Termination Fees. (a) Except as provided in subsections (b) and (c) of this Section 8.3, whether or not the Merger is consummated, all 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 expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 7.2(b), and fees, costs and expenses associated with compliance with applicable Blue Sky securities laws in connection with the Merger and filing fees under the HSR Act shall be shared equally by the Company and Parent. (b) In the event that: (i) Parent shall terminate this Agreement pursuant to Section 8.1(e); (ii) the Company shall terminate this Agreement pursuant to Section 8.1(g); or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b) or Section 8.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) or Section 8.1(f)(ii), there shall have been (A) a Trigger Event with respect to the Company, or (B) a Takeover Proposal with respect to the Company, in either case which at the time of such termination shall not have been absolutely and unconditionally withdrawn or abandoned by the other party thereto, then, in each such event, in addition to any other remedies Parent may have, the Company shall pay to Parent (1) in the case of a termination described in Section 8.3(b)(i) or Section 8.3(b)(ii), the sum of three five million eight five hundred thousand dollars ($3,800,0005,500,000) (provided, however, that if Section 5.2(ii)(B) is applicable to such termination, the amount payable by the Company shall be two million six hundred thousand dollars ($2,600,000), and (2) in the case of a termination described in Section 8.3(b)(iii)) , if within twelve (12) months of a termination described in Section 8.3(b)(iii) any Takeover Proposal or any Trigger Event shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three five million eight five hundred thousand dollars ($3,800,0005,500,000) (provided, however, that the amount payable by the Company shall be three five million five hundred thousand dollars ($3,500,0005,000,000) if the Takeover Proposal or Trigger Event shall be consummated with a person or entity other than the person or entity making the Takeover Proposal or Trigger Event which originally triggered the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate of such person or entity). The payments required by this Section 8.3(b) shall be made within two (2) business days after termination in the case of a termination by Parent pursuant to Section 8.1(e), prior to termination in the event of a termination by the Company pursuant to Section 8.1(g), and upon the earlier of the consummation of a Trigger Event or Takeover Proposal or the execution and delivery of any letter of intent or preliminary or definitive agreement with respect to a Takeover Proposal in the event of termination pursuant to Section 8.1(b) or Section 8.1(f)(ii)) . Solely for purposes of Section 8.3(b), all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%).

Expenses and Termination Fees. (a) Except as provided in Subject to subsections (b), (c), (d) and (ce) of this Section 8.37.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including including, without limitation, the fees and expenses of its advisers, accountants and legal counsel) shall be paid by the party incurring such expense, except that expenses incurred in connection with printing the proxy materials Proxy Materials and the Offer DocumentsRegistration Statement, registration, registration and filing fees incurred in connection with the Offer DocumentsRegistration Statement, the Schedule 14D-9 Proxy Materials and the proxy materials listing of additional shares pursuant to Section 6.1(f) and fees, costs and expenses associated with compliance with applicable state securities laws in connection with the Merger shall be shared equally by the Company and Parent. (b) In the event that: that (i) Parent shall terminate this Agreement pursuant to Section 8.1(e7.1(e); , (ii) the Company Parent shall terminate this Agreement pursuant to Section 8.1(g); 7.1(c)(iii) as a result of the failure by Company through its, or otherwise by, the officers, directors or advisors of the Company, or any person authorized by such persons, to comply with the requirements of Section 4.3, (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b7.1(c)(iv) and at the time of such recommendation, endorsement, acceptance or agreement under Section 7.1(c)(iv) there shall not exist circumstances giving rise to a Material Adverse Effect on Parent, (iv) Parent (or, in the case of Section 7.1(f)(ii), Company) shall terminate this Agreement pursuant to Section 7.1(c)(ii) or Section 8.1(f)(ii7.1(f)(ii) and, prior to such termination pursuant to Section 8.1(b) withdrawal, modification or Section 8.1(f)(ii)stockholder rejection, there shall have been (A) a Trigger Event with respect to the Company, Company or (B) a Takeover Proposal with respect to the Company, in either case Company which at the time of such termination withdrawal, modification or stockholder rejection shall not have been absolutely and unconditionally (x) rejected by Company or (y) withdrawn or abandoned by the other third party theretoand at the time of such withdrawal, thenmodification or stockholder rejection, in each such eventthere shall not exist circumstances giving rise to a Material Adverse Effect on Parent, in addition to any other remedies Parent may have, the Company shall pay to or (v) Parent (1) or, in the case of a termination described in Section 8.3(b)(i7.1(b), Company) shall terminate this Agreement pursuant to Section 7.1(b), 7.1(c)(i) or Section 8.3(b)(ii7.1(c)(v), due primarily to any failure by Company to use commercially reasonable efforts to perform and comply with all agreements and conditions required by this Agreement to be performed or complied with by Company prior to or on the Closing Date or any failure by Company's affiliates to take any actions required to be taken hereby, and prior thereto 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 or (y) withdrawn by the third party, then Company shall promptly pay to Parent the sum of three $55 million eight hundred thousand dollars ($3,800,000the "Termination Fee") pursuant to this Section 7.3(b) if Parent terminates this Agreement pursuant to clauses (i), and (2ii), (iii), (iv) or (v) above within five business days of the occurrence of the event giving Parent the right to so terminate this Agreement. (c) If no payment shall have been required pursuant to Section 7.3(b), in the event that (i) Parent (or, in the case of a termination Section 7.1(b), Company) shall terminate this Agreement pursuant to Section 7.1(b) or Section 7.1(c)(v) under the circumstances described in Section 8.3(b)(iii7.3(b)(v) (but replacing the word "or" between clauses (x) and (y) thereof with the word "and"), if within twelve (12ii) months of a termination Parent shall terminate this Agreement pursuant to Section 7.1(c)(i) under circumstances not described in Section 8.3(b)(iii7.3(b)(iv), (iii) any Takeover Proposal or any Trigger Event Parent shall be consummated or any letter of intent or preliminary or definitive agreement with respect thereto shall be signed, the sum of three million eight hundred thousand dollars ($3,800,000terminate this Agreement pursuant to Section 7.1(f)(ii) under circumstances not described in Section 7.3(b)(iv) (providedother than the circumstance that prior to the time of the meeting of Company's stockholders, however, that the amount payable by the Company shall be three million five hundred thousand dollars ($3,500,000x) if the either (A) no Takeover Proposal or Trigger Event with respect to Company shall be consummated with a person have occurred (whether or entity other than the person 46 not rejected or entity making the withdrawn prior to such meeting) or (B) each Takeover Proposal or Trigger Event which originally triggered occurring prior to such meeting shall have been rejected by Company and withdrawn by the right of termination under Section 8.1(b) or Section 8.1(f)(ii) or with an affiliate third party and after the latest to occur of such person or entity). The payments rejections and/or withdrawals there shall have occurred circumstances giving rise to a Material Adverse Effect on Parent and (y) there shall have been no failure by Company to use commercially reasonable efforts to perform and comply with all agreements and conditions required by this Section 8.3(bAgreement to be performed or completed by Company prior to or on the Closing Date), (iv) Parent shall be made within two (2) business days after termination in the case of a termination by Parent terminate this Agreement pursuant to Section 8.1(e7.1(c)(ii) under circumstances not described in Section 7.3(b)(iv) and at the time of such withdrawal or modification there shall not exist circumstances giving rise to a Material Adverse Effect on Parent, or (v) this Agreement shall be terminated under the circumstances described in Section 7.3(b) other than the requirement under Section 7.3(b) that Parent terminate this Agreement within five business days of the occurrence of the events described therein, the 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); and, in the event (A) any Takeover Proposal is consummated by or with any person that made a Takeover Proposal prior to termination of this Agreement or that caused a Trigger Event prior to such termination, or any affiliate of any such person, within nine months, or (B) any other Takeover Proposal not described in clause (A) is consummated within twelve months, of the event later of a (x) such termination of this Agreement and (y) the payment of the above-described expenses, Company shall promptly pay to Parent the additional sum equal to the Termination Fee (less the amount of Parent's costs and expenses previously reimbursed by the Company pursuant to this Section 8.1(g7.3(c), and upon ). (d) In the earlier event that Company shall terminate this Agreement pursuant to Section 7.1(d) 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 20% 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 20% or more, of the voting power of Company; PROVIDED, HOWEVER, a Trigger Event shall not be deemed to include the acquisition by any Person of securities representing 20% or Takeover Proposal more of Company if such Person has acquired such securities not with the purpose nor with the effect of changing or influencing the execution and delivery control of Company, nor in connection with or as a participant in any letter of intent transaction having such purpose or preliminary or definitive agreement 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, directly or indirectly, relating to a Takeover Proposal merger or other business combination involving Company or the sale or transfer of a significant portion of assets (excluding the sale or disposition of assets in the event ordinary course of termination pursuant business) 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 Section 8.1(bany voting securities of Company, directly or indirectly, relating to a merger or other business combination involving Company 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 Company, or Section 8.1(f)(ii). Solely for (iv) otherwise acting, alone or in concert with others, to seek control of Company or to seek to control or influence the management or policies of Company. (f) For purposes of Section 8.3(b)this Agreement, all references to fifteen percent (15%) in the definition of the term "Takeover Proposal" shall be increased to forty percent (40%) and all references to eighty five percent (85%) therein shall be reduced to sixty percent (60%)means any offer or proposal for a merger or other business combination involving Company or any of its subsidiaries or the acquisition of 20% 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 Merger.