Common use of Expenses Following Termination Clause in Contracts

Expenses Following Termination. (a) Except as set forth in this Section 7.6, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.13. (b) The Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds an amount equal to $450,000 (the “Termination Fee”): (i) if this Agreement is terminated by Parent pursuant to Section 7.3(a), Section 7.3(b) or Section 7.3(c) or pursuant to Section 7.3(d) as a result of a willful breach by the Company or if this Agreement is terminated by the Company pursuant to Section 7.2(c), in which case payment shall be made within two Business Days of such termination; or (ii) if (A) a Takeover Proposal shall have been made or proposed to the Company or its stockholders or otherwise publicly announced (whether or not conditional), (B) this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(a) or Section 7.2(c) and (C) within 18 months following the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principle, arrangement, understanding or Contract providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referred to in the foregoing clause (A)), in which case payment shall be made within two Business Days of the date on which the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding or Contract or consummates such Takeover Proposal, as applicable. For purposes of the foregoing clause (C) only, references in the definition of the term “Takeover Proposal” to the figure “20%” shall be deemed to be replaced by the figure “40%”. (c) Each of the Company and Parent acknowledges that (i) the agreements contained in this Section 7.6 are an integral part of the transactions contemplated by this Agreement and (ii) without these agreements, neither party would have entered into this Agreement. Accordingly, if either the Company or Parent fails to pay when due any amounts required to be paid by it pursuant to this Section 7.6 (the “Expense Payor”) and, in order to obtain such payment, the party seeking payment of Expenses (the “Expense Payee”) commences a Legal Action which results in a judgment against the Expense Payor for such amounts, then in addition to the amount of such judgment, the Expense Payee shall be entitled to an amount from the Expense Payor equal to the fees, costs and expenses (including attorneys’ fees, costs and expenses) incurred by the Expense Payee in connection with such Legal Action, together with interest from the date of termination of this Agreement on all amounts so owed at the prime rate per annum in effect from time to time during such period (as published for each Business Day (or if such a day is not a Business Day, the immediately preceding Business Day) in the Wall Street Journal under the caption “Money Rates, Prime Rate”) plus 3%.

Expenses Following Termination. (a) Except as set forth in this Section 7.6, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.135.14. (b) The Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds an amount equal to $450,000 21,000,000 (the “Company Termination Fee”) and reasonable documented Expenses of the Purchaser Parties not to exceed $5,000,000 (the “Termination FeeExpenses”): (i) if this Agreement is terminated by the Company pursuant to Section 7.4(a), in which case payment shall be made before or concurrently with such termination and shall be a condition to the effectiveness of such termination; (ii) if this Agreement is terminated by Parent pursuant to Section 7.3(a), Section 7.3(b) ), or Section 7.3(c) or pursuant to Section 7.3(d) as a result of a willful breach by the Company or if this Agreement is terminated by the Company pursuant to Section 7.2(c), in which case payment shall be made within two Business Days of such termination; or (iiiii) if (A) a Takeover Proposal shall have been made or proposed to the Company or its stockholders the Operating Partnership or otherwise publicly announced (whether or which has not conditionalbeen withdrawn), (B) this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(a) or Section 7.2(c7.2(b) or by Parent pursuant to Section 7.3(d) and (C) within 18 12 months following the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principle, arrangement, understanding or a Contract providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referred to in the foregoing clause (A)), in which case payment shall be made within two Business Days of the date on which the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding or Contract or consummates such Takeover Proposal, as applicable. For purposes of the foregoing clause (C) only, references in the definition of the term “Takeover Proposal” to the figure “20%” shall be deemed to be replaced by the figure “4050%”; (c) In no event shall the Company be required to pay under Section 7.6 an amount in excess of the sum of the Company Termination Fee plus the maximum amount of Termination Expenses. (cd) Each of the Company and Parent acknowledges that (i) the agreements contained in this Section 7.6 are an integral part of the transactions contemplated by this Agreement and (ii) without these agreements, neither party would have entered into this Agreement. Accordingly, if either In the event that the Company or Parent fails shall fail to pay the Company Termination Fee or any Termination Expenses when due any amounts required to be paid by it pursuant to this Section 7.6 (the “Expense Payor”) and, in order to obtain such paymentdue, the Company shall reimburse the other party seeking payment of Expenses (the “Expense Payee”) commences a Legal Action which results in a judgment against the Expense Payor for such amounts, then in addition to the amount of such judgment, the Expense Payee shall be entitled to an amount from the Expense Payor equal to the fees, all reasonable costs and expenses actually incurred or accrued by such other party (including attorneys’ fees, costs reasonable fees and expensesexpenses of counsel) incurred by the Expense Payee in connection with such Legal Action, together with interest from the date of termination collection under and enforcement of this Agreement on all amounts so owed at the prime rate per annum in effect from time to time during such period (as published for each Business Day (or if such a day is not a Business Day, the immediately preceding Business Day) in the Wall Street Journal under the caption “Money Rates, Prime Rate”) plus 3%Section 7.6.

Expenses Following Termination. (a) Except as set forth in this Section 7.6, all Expenses incurred in connection with this Agreement and the transactions expressly contemplated hereby shall be paid in accordance with the provisions of Section 5.13. (b) The Company shall pay, or cause to be paid, to Parent upon termination by wire transfer of immediately available funds an amount equal to $450,000 (the “relevant Termination Fee”):: (i) if this Agreement is terminated by Parent pursuant to Section 7.3(a), Section 7.3(b) or Section 7.3(c) or pursuant to Section 7.3(d) as a result of a willful breach by the Company or if this Agreement is terminated by the Company pursuant to Section 7.2(c7.4(a), in which case payment shall be made before or concurrently with such termination; (ii) if this Agreement is terminated by Parent pursuant to Sections 7.3(a), 7.3(b) or 7.3(c), in which case payment shall be made within two Business Days of after such termination; or; (iiiii) if (A) a Takeover Proposal shall have been made or proposed to the Company or its stockholders or otherwise publicly announced (whether or not conditional), (B) this Agreement is terminated by either Parent or the Company pursuant to Section Sections 7.2(a) or Section 7.2(c7.2(b) and (C) within 18 12 months following the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principle, arrangement, understanding principle or Contract definitive agreement providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referred to in the foregoing clause (A)), in which case payment shall be made within two Business Days of after the date on which the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding principle or Contract definitive agreement or consummates such Takeover Proposal, as applicable. For purposes of the foregoing clause (C) only, references in the definition of the term “Takeover Proposal” to the figure “2015%” shall be deemed to be replaced by the figure “4050%”. (iv) The parties hereto agree that in no event shall the Company be required to pay the Termination Fee on more than one occasion. (c) If (i) this Agreement is terminated by the Company pursuant to Section 7.4(c) or (ii) all of the conditions to Closing set forth in Article VI (other than (A) the condition set forth in Section 6.2(e) and (B) those other conditions that, by their nature, cannot be satisfied until the Closing Date, but, in the case of clause (B), which conditions would be satisfied if the Closing were held on the Outside Termination Date) have been satisfied or waived on or prior to the Outside Termination Date and the condition specified in Section 6.2(e) has not been satisfied on the Outside Termination Date, Parent shall pay, or cause to be paid, by wire transfer of immediately available funds, an amount equal to $2,000,000 to the Company, representing reimbursement of certain Expenses incurred by the Company in connection with the Transaction, in which case payment shall be made within two Business Days after such termination. (d) Each of the Company and Parent acknowledges that (i) the agreements contained in this Section 7.6 are an integral part of the transactions expressly contemplated by this Agreement and (ii) without these agreements, neither party the Company, Parent and Merger Sub would not have entered into this Agreement. Accordingly, if either the Company or Parent fails fail to pay when due any amounts required to be paid by it pursuant to this Section 7.6 (the “Expense Payor”) and, in order to obtain such payment, Parent or the party seeking payment of Expenses (the “Expense Payee”) Company, as applicable, commences a Legal Action which results in a judgment against the Expense Payor Company or Parent, as applicable, for such amounts, then in addition to the amount of such judgment, the Expense Payee Company shall be entitled pay to Parent or Parent shall pay to the Company, as applicable, an amount from the Expense Payor equal to the fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) incurred by the Expense Payee Parent or Company, as applicable, in connection with such Legal Action, together with interest from the date of termination of this Agreement on all amounts so owed at the prime base rate of Citibank, N.A. per annum in effect from time to time during such period (as published for each Business Day (or if such a day is not a Business Day, the immediately preceding Business Day) in the Wall Street Journal under the caption “Money Rates, Prime Rate”) plus 3%. (e) Notwithstanding anything in this Agreement to the contrary, but subject to Section 7.6(e)(iii): (i) If the Termination Fee is due and payable, the payment of such Termination Fee shall be the sole and exclusive remedy of Parent and Merger Sub and their respective Affiliates against the Company and any of its former, current or future directors, officers, stockholders, Affiliates, employees or agents (or any of their successors or permitted assignees) or against any former, current or future director, officer, general or limited partner, stockholder, member, manager, controlling person, Affiliate, employee or agent of any of the foregoing (or any of their successors or permitted assignees) (collectively, the “Company Parties”) for any loss or damage suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise in connection with this Agreement, and upon payment of such amount, none of the Company or any other Company Parties shall have any further liability or obligation arising out of or relating to this Agreement or the transactions expressly contemplated hereby and in no event shall Parent, Merger Sub, or any of their respective Affiliates seek, or be entitled to, any equitable relief or equitable remedies of any kind whatsoever, including specific performance. (ii) If the expense reimbursement referenced in Section 7.6(c) becomes due and payable, the payment thereof shall be the sole and exclusive remedy of the Company and its Affiliates against Parent, Merger Sub and any of their respective former, current or future directors, officers, general or limited partners, stockholders, members, managers, controlling persons, Affiliates, employees or agents (or any of their successors or permitted assignees) or against any former, current or future director, officer, general or limited partner, stockholder, member, manager, controlling person, Affiliate, employee or agent of any of the foregoing (or any of their successors or permitted assignees) (collectively, the “Parent Parties”) for any loss or damage suffered as a result of the failure of the Merger to be consummated or for a breach or failure to perform hereunder or otherwise in connection with this Agreement, and upon payment of such amount, none of Parent, Merger Sub or any other Parent Parties shall have any further liability or obligation arising out of or relating to this Agreement or the transactions expressly contemplated hereby and in no event shall the Company or any of its Affiliates seek, or be entitled to, any equitable relief or equitable remedies of any kind whatsoever, including specific performance. (iii) Nothing in this Section 7.6 shall relieve (A) the Company from liability for any willful breach of its representations, warranties, covenants or agreements set forth in this Agreement or (B) Parent from liability for any willful breach of its or its Affiliates’ representations, warranties, covenants or agreements set forth in this Agreement or any Financing Agreement.

Expenses Following Termination. (a) Except as set forth in Section 7.5 and this Section 7.6, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby Transactions shall be paid in accordance with the provisions of Section 5.135.14. (b) The Company shall pay, or cause to be paid, to Parent Parent, by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, an amount in cash equal to $450,000 20,000,000 (the “Company Termination Fee”):), as follows: (i) if this Agreement is validly terminated by the Company pursuant to Section 7.4(a), payment shall be made concurrently with such termination; (ii) if this Agreement is validly terminated by Parent pursuant to Section 7.3(a), Section 7.3(b) or Section 7.3(c) or pursuant to Section 7.3(d) as a result of a willful breach by the Company or if this Agreement is terminated by the Company pursuant to Section 7.2(c), in which case payment shall be made within two (2) Business Days of such termination; or (iiiii) if (A) a Takeover Proposal shall have been made or proposed to the Company or its stockholders or otherwise publicly announced prior to the Company Stockholders Meeting (whether or and not conditionalpublicly withdrawn at least five (5) Business Days prior to the Company Stockholders Meeting), (B) this Agreement is validly terminated by either Parent or the Company pursuant to Section 7.2(a) or and Section 7.2(c) 7.2(d), and (C) within 18 twelve (12) months following of the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principlean agreement, arrangement, arrangement or understanding or Contract providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not and such Takeover Proposal was the same Takeover Proposal referred to in the foregoing clause (A))is ultimately consummated, in which case payment shall be made within two Business Days concurrently with the consummation of the date on which the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding or Contract or consummates such Takeover Proposal, as applicable. For whichever occurs earlier, provided, however, that for purposes of this Section 7.6(b)(iii), the foregoing clause (C) only, references to 20% in the definition of the term “Takeover Proposal” to the figure “20%” shall be deemed to be replaced by the figure “40references to 50%”. (c) Parent shall pay, or cause to be paid, to the Company, by wire transfer of immediately available funds, an amount in cash equal to $40,000,000 (the “Parent Termination Fee”) if this Agreement is validly terminated by the Company pursuant to either Section 7.4(b) or Section 7.4(c); provided, however, that if this Agreement is so terminated by the Company as a result of fraud or Willful and Material Breach of this Agreement by Parent or Merger Sub, then the Company shall elect, by providing written notice to Parent within five (5) Business Days after such termination, to either: (i) require Parent to pay to the Company, within three (3) Business Days after Parent’s receipt of such written notice from the Company, the Parent Termination Fee in accordance with this Section 7.6(c) or (ii) seek an award of monetary damages against Parent for any losses suffered by the Company in connection with such termination of this Agreement; provided, further, for the avoidance of doubt, that, notwithstanding anything to the contrary in this Agreement, the Company shall not be entitled to both collect the Parent Termination Fee and seek monetary damages against Parent or any Parent Related Parties for any losses suffered by the Company in connection with such termination of this Agreement or any breach giving rise thereto. (d) Each of the Company and Parent acknowledges that (i) the agreements contained in this Section 7.6 are an integral part of the transactions contemplated by this Agreement Transactions and (ii) without these agreements, neither party agreements the other Party would not have entered into this Agreement. Accordingly, if either the Company or Parent fails to pay when due any amounts required to be paid by it pursuant to this Section 7.6 (the “Expense Payor”) and, in order to obtain such payment, the party seeking payment of Expenses (the “Expense Payee”) Company or Parent, as applicable, commences a Legal Action which results in a judgment against Parent or the Expense Payor Company, respectively, for such amounts, then then, in addition to the amount of such judgment, Parent or Company, as applicable, shall pay to the Expense Payee shall be entitled to Company or Parent, respectively, an amount from the Expense Payor equal to the fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) incurred by the Expense Payee such Party in connection with such Legal Action, together with interest from the date of termination of this Agreement on all amounts so owed at the prime rate per annum in effect from time to time during such period (as published for each Business Day (or if such a day is not a Business Day, the immediately preceding Business Day) in the Wall Street Journal in effect on the date such payment was required to be made plus three percent (3%) (“Enforcement Expenses”). (e) The Parties acknowledge and agree that in no event will Parent be required to pay the Parent Termination Fee on more than one occasion, whether or not the Parent Termination Fee may be payable pursuant to more than one provision of this Agreement at the same or at different times and upon the occurrence of different events. Notwithstanding anything to the contrary in this Agreement, subject to (x) the Company’s right to specific performance pursuant to Section 8.14 (subject to the conditions and limitations set forth therein) and (y) the Company’s right to seek monetary damages pursuant to Section 7.6(e) in the event this Agreement is validly terminated by the Company pursuant to Section 7.4(b) or Section 7.4(c) as a result of fraud or Willful and Material Breach of this Agreement by Parent, Merger Sub or any Parent Related Party, following the valid termination of this Agreement, the Company’s receipt in full of the Parent Termination Fee pursuant to Section 7.6(c), together with any Enforcement Expenses, shall be the sole and exclusive remedy of the Company and its Affiliates against (i) Parent, Merger Sub, the Investor, the Guarantors and each of their respective Affiliates and (ii) each of the respective former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of any of the Persons described in clause (i) above (the Persons described in the foregoing clauses (i) and (ii), collectively, the “Parent Related Parties”) in respect of this Agreement and the Transactions, and upon payment in full of the Parent Termination Fee, together with any Enforcement Expenses, none of the Parent Related Parties shall have any further liability or obligation to the Company or any of its Affiliates relating to or arising out of this Agreement or the Transactions (except that the Company may be entitled to remedies under the caption Confidentiality Agreement, solely to the extent provided therein), through Parent or otherwise, whether by or through the attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a claim (whether at law, in equity, in contract, in tort or otherwise) by or on behalf of any Party against any Parent Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or other applicable Law, or otherwise. Except in the case of fraud or Willful and Material Breach of this Agreement by Parent or Merger Sub or any Parent Related Party, following the valid termination of this Agreement, in no event shall Parent, Merger Sub or any Parent Related Party have liability for monetary damages (including monetary damages in lieu of specific performance) relating to or arising out of this Agreement or the Transactions (A) in circumstances where the Parent Termination Fee is not payable pursuant to this Agreement or (B) in the aggregate in excess of the Parent Termination Fee, together with any Enforcement Expenses (less any portion thereof that has been paid), in the circumstances where the Parent Termination Fee, together with any Enforcement Expenses, is payable, and, in the case of this clause (B), the Parent Termination Fee, together with any Enforcement Expenses, shall be the maximum aggregate liability of the Parent Related Parties under this Agreement. Notwithstanding that the Company has the right to seek specific performance of Parent’s obligation to consummate the Closing, on the one hand, and the Parent Termination Fee, on the other hand, simultaneously, it may only obtain either specific performance of Parent’s obligation to consummate the Closing, on the one hand, or payment of the Parent Termination Fee, on the other hand. The Parent Related Parties are intended third-party beneficiaries of this Section 7.6(e). (f) The Parties acknowledge and agree that in no event will the Company be required to pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable pursuant to more than one provision of this Agreement at the same or at different times and upon the occurrence of different events. Notwithstanding anything to the contrary in this Agreement, if Parent is entitled to receive the Company Termination Fee pursuant to Section 7.6(b), subject Parent’s right to specific performance pursuant to Section 8.14, following the valid termination of this Agreement in the circumstances in which the Company Termination Fee is payable pursuant to Section 7.6(b), Parent’s right to receive payment of the Company Termination Fee pursuant to Section 7.6(b), together with any Enforcement Expenses, shall be the sole and exclusive monetary remedy of Parent and each of its Affiliates against the Company, its Subsidiaries, each of their respective Affiliates and each of the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (collectively, the “Money Rates, Prime RateCompany Related Parties”) plus 3%in respect of this Agreement or the Transactions, in each instance, except in the case of fraud or Willful and Material Breach of this Agreement by the Company or any Company Related Party, and, upon payment in full of the Company Termination Fee, together with any Enforcement Expenses, none of the Company Related Parties shall have any further liability or obligation to Parent relating to or arising out of this Agreement or the Transactions (except that Parent (or an Affiliate of Parent) may be entitled to remedies under the Confidentiality Agreement, solely to the extent provided therein), through the Company or otherwise, whether by or through the attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a claim (whether at law, in equity, in contract, in tort or otherwise) by or on behalf of any Party against any Company Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or other applicable Law, or otherwise. Except in the case of fraud or Willful and Material Breach of this Agreement by the Company or any Company Related Party, following the valid termination of this Agreement, in no event shall the Company or any of its Subsidiaries or any Company Related Party have liability for monetary damages relating to or arising out of this Agreement or the Transactions in excess of the Company Termination Fee, together with any Enforcement Expenses. The Company Related Parties are intended third-party beneficiaries of this Section 7.6(f).

Expenses Following Termination. (a) Except as set forth in this Section 7.6, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.13. (b) The Promptly (and in any event no later than two (2) Business Days following the occurrence of the following events) the Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds the sum of (x) an amount equal to the Expenses of the Parent and its Affiliates up to a maximum amount of $450,000 2,000,000 plus (the “Termination Fee”):y) $10,000,000 if: (i) if this Agreement is terminated by Parent pursuant to Section 7.3(a), Section 7.3(b) or Section 7.3(c) or pursuant to Section 7.3(d) as a result of a willful breach by the Company or if this Agreement is terminated by the Company pursuant to Section 7.2(c7.4(a); provided, however, that in which such case payment shall be made within two Business Days of immediately prior to and as a condition precedent to such termination; (ii) this Agreement is terminated by Parent pursuant to Sections 7.3(a), 7.3(b) or 7.3(c); or (iiiii) if (A) a Takeover an Acquisition Proposal shall have been made or proposed to the Company or its stockholders or otherwise publicly announced (whether or not conditionalconditional and whether or not withdrawn), (B) this Agreement is terminated by (x) Parent pursuant to Section 7.2(a) and the circumstances prescribed in the proviso to Section 7.2(a) apply to the Company, (y) either Parent or the Company pursuant to Section 7.2(a7.2(d) or (z) Parent pursuant to Section 7.2(c7.3(e) and such termination is in connection with a willful breach by the Company of any of its representations, warranties or covenants, and (C) within 18 twelve (12) months following the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principle, arrangement, understanding arrangement or Contract providing for the implementation of a Takeover any Acquisition Proposal or shall consummate any Takeover Acquisition Proposal, regardless of whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in clause (A); provided, however, that for purposes of Section 7.6(b)(iii)(C) only, Acquisition Proposal shall mean any Contract, proposal, offer or other indication of interest (whether or not such Takeover Proposal was in writing and whether or not delivered to the same Takeover Proposal referred Company stockholders generally) relating to in the foregoing clause (A))i) a merger, in which case payment shall be made within two Business Days of the date on which consolidation, or other business combination involving the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding any of its Subsidiaries representing twenty percent (20%) or Contract or consummates such Takeover Proposal, as applicable. For purposes more of the foregoing clause (C) only, references in the definition revenues or book or fair market value of the term “Takeover Proposal” Company Assets, (ii) a sale, lease, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of twenty (20%) or more of the revenues or book or fair market value of the Company Assets (including the capital stock of (or other ownership interest in) any Subsidiary of the Company), (iii) a purchase or sale of Company Securities, in a single transaction or series of related transactions, representing twenty percent (20%) or more of the voting power of the capital stock of (or other ownership interest in) the Company or any of its Subsidiaries representing twenty percent (20%) or more of the revenues or book or fair market value of the Company Assets or any new class or series of stock that would be entitled to a class or series vote with respect to the figure “Merger, including by way of a tender offer, exchange offer or issuance of any Company Securities in connection with any acquisition by the Company or any of its Subsidiaries or (iv) a reorganization, recapitalization, liquidation or dissolution of the Company or any of its Subsidiaries representing twenty percent (20%” shall be deemed to be replaced ) or more of the revenues or book or fair market value of the Company Assets, in each case other than the transactions contemplated by the figure “40%”this Agreement. (c) Each of the The Company and Parent acknowledges that (i) the agreements contained in this Section 7.6 are an integral part of the transactions contemplated by this Agreement and (ii) without these agreements, neither party Parent and Merger Sub would not have entered into this Agreement. Accordingly, if either the Company or Parent fails to pay when due any amounts required to be paid by it pursuant to this Section 7.6 (the “Expense Payor”) and, in order to obtain such payment, the party seeking payment of Expenses (the “Expense Payee”) Parent commences a Legal Action which results in a judgment against the Expense Payor Company for such amounts, then in addition to the amount of such judgment, the Expense Payee Company shall be entitled pay to Parent an amount from the Expense Payor equal to the fees, costs and expenses (including attorneys’ ' fees, costs and expenses) incurred by the Expense Payee Parent in connection with such Legal Action, together with interest from the date of termination of this Agreement on all amounts so owed at the prime rate per annum annum, as published by Citibank N.A., in effect from time to time during such period (as published for each Business Day (or if such a day is not a Business Dayperiod, the immediately preceding Business Day) in the Wall Street Journal under the caption “Money Rates, Prime Rate”) plus 32%.

Expenses Following Termination. (a) Except as set forth in this Section 7.6, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.135.14. (b) The Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds an amount equal to $450,000 44,500,000 (the “Termination Fee”"COMPANY TERMINATION FEE") and reasonable documented Expenses of Parent and Merger Sub not to exceed $5,000,000 (the "TERMINATION EXPENSES"): (i) if this Agreement is terminated by the Company pursuant to Section 7.4(a), in which case payment shall be made before or concurrently with such termination and shall be a condition to the effectiveness of such termination; (ii) if this Agreement is terminated by Parent pursuant to Section 7.3(a), Section 7.3(b) ), or Section 7.3(c) or pursuant to Section 7.3(d) as a result of a willful breach by the Company or if this Agreement is terminated by the Company pursuant to Section 7.2(c), in which case payment shall be made within two Business Days of such termination; or (iiiii) if (A) a Takeover Proposal shall have been made or proposed to the Company or its stockholders or otherwise publicly announced (whether or which has not conditionalbeen withdrawn), (B) this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(a) or Section 7.2(c7.2(b) or by Parent pursuant to Section 7.3(d) and (C) within 18 12 months following the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principle, arrangement, understanding or a Contract providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referred to in the foregoing clause (A)), in which case payment shall be made within two Business Days of the date on which the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding or Contract or consummates such Takeover Proposal, as applicable. For purposes of the foregoing clause (C) only, references in the definition of the term “"Takeover Proposal” " to the figure “"20%” " shall be deemed to be replaced by the figure “40"50%”"; (c) In no event shall the Company be required to pay under Section 7.6 an amount in excess of the sum of the Company Termination Fee plus the maximum amount of Termination Expenses. (cd) Each of the Company and Parent acknowledges that (i) the agreements contained in this Section 7.6 are an integral part of the transactions contemplated by this Agreement and (ii) without these agreements, neither party would have entered into this Agreement. Accordingly, if either In the event that the Company or Parent fails shall fail to pay the Company Termination Fee or any Termination Expenses when due any amounts required to be paid by it pursuant to this Section 7.6 (the “Expense Payor”) and, in order to obtain such paymentdue, the Company shall reimburse the other party seeking payment of Expenses (the “Expense Payee”) commences a Legal Action which results in a judgment against the Expense Payor for such amounts, then in addition to the amount of such judgment, the Expense Payee shall be entitled to an amount from the Expense Payor equal to the fees, all reasonable costs and expenses actually incurred or accrued by such other party (including attorneys’ fees, costs reasonable fees and expensesexpenses of counsel) incurred by the Expense Payee in connection with such Legal Action, together with interest from the date of termination collection under and enforcement of this Agreement on all amounts so owed at the prime rate per annum in effect from time to time during such period (as published for each Business Day (or if such a day is not a Business Day, the immediately preceding Business Day) in the Wall Street Journal under the caption “Money Rates, Prime Rate”) plus 3%Section 7.6.

Expenses Following Termination. (a) Except as set forth in this Section 7.6, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.135.15 (Fees, Expenses and Conveyance Taxes). (b) The Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds an amount equal to $450,000 3,000,000 (the “"Company Termination Fee”"): (i1) if this Agreement is terminated by the Company pursuant to Section 7.4(a), in which case payment shall be made concurrently with such termination and shall be a condition to the effectiveness of such termination; (2) if this Agreement is terminated by Parent pursuant to Section 7.3(a), Section 7.3(bin which case payment shall be made within 18 months of such termination but in no event later than the earlier of (x) or Section 7.3(ca date within two (2) or pursuant to Section 7.3(d) as a result of a willful breach by Business Days following the date the Company enters into a Contract providing for the implementation of, or consummates, a Takeover Proposal, or (y) the date that is 18 months following the date of such termination; (3) if this Agreement is terminated by the Company Parent pursuant to Section 7.2(c7.3(c), in which case payment shall be made within two (2) Business Days of such termination; or (ii4) if (A) a Takeover Proposal shall have been made or proposed to the Company or its stockholders or otherwise publicly announced (whether or which has not conditionalbeen withdrawn), (B) this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(a) or Section 7.2(c) 7.2(b), and (C) within 18 12 months following the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principle, arrangement, understanding or a Contract providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referred to in the foregoing clause (A)), in which case payment shall be made within two (2) Business Days of the date on which the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding or Contract or consummates such Takeover Proposal, as applicable. For applicable (provided, that, for purposes of the foregoing clause (C) only, references in the definition of the term “"Takeover Proposal” " to the figure “"20%” " shall be deemed to be replaced by the figure “40"50%”."); or (c5) Each of the Company and Parent acknowledges that if (iA) the agreements contained in this Section 7.6 are an integral part of the transactions contemplated by this Agreement and (ii) without these agreements, neither party would a Takeover Proposal shall have entered into this Agreement. Accordingly, if either been made or proposed to the Company or otherwise publicly announced (which has not been withdrawn), (B) this Agreement is terminated by Parent fails to pay when due any amounts required to be paid by it pursuant to this Section 7.6 7.3(b), and (the “Expense Payor”C) and, in order to obtain such payment, the party seeking payment of Expenses (the “Expense Payee”) commences a Legal Action which results in a judgment against the Expense Payor for such amounts, then in addition to the amount of such judgment, the Expense Payee shall be entitled to an amount from the Expense Payor equal to the fees, costs and expenses (including attorneys’ fees, costs and expenses) incurred by the Expense Payee in connection with such Legal Action, together with interest from within 18 months following the date of termination of this Agreement on all amounts so owed at the prime rate per annum in effect from time to time during such period (as published for each Business Day (or if such a day is not a Business Daytermination, the immediately preceding Business Day) Company enters into a Contract providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referred to in the Wall Street Journal under foregoing clause (A)), in which case payment shall be made within two (2) Business Days of the caption “Money Ratesdate on which the Company enters into such Contract or consummates such Takeover Proposal, Prime Rate”) plus 3%as applicable.

Expenses Following Termination. (a) Except as set forth in this Section 7.67.5, all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid in accordance with the provisions of Section 5.13. For purposes of this Agreement, "Expenses" consist of all -------- out-of-pocket expenses (including all fees, commitment fees and expenses of counsel, accountants, commercial and investment bankers, lenders, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf to the extent directly related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Proxy Statement, the solicitation of stockholder approvals and all other matters related to the closing of the transactions contemplated hereby up to a maximum of $1,000,000. (b) The Company agrees that, if (i) the Company shall payterminate this Agreement pursuant to Section 7.1(h), (ii) Merger Sub shall terminate this Agreement pursuant to Section 7.1(d), or cause (iii) (A) Merger Sub shall terminate this Agreement pursuant to Section 7.1(e) due to the failure to obtain the approval of the Company's stockholders at the Company Stockholders' Meeting and (B) at the time of such failure, any person shall have made a public announcement or otherwise communicated to the Company and its stockholders with respect to a Takeover Proposal with respect to the Company, then in accordance with Section 7.5(c), after such termination, or in the case of clause (iii) after the consummation of such Takeover Proposal, the Company shall pay to Merger Sub an amount equal to Merger Sub's documented Expenses in connection with this Agreement and the transactions contemplated hereby and a termination fee in the amount of $7,000,000 (collectively, such Expenses and such fee, the "Termination Amount"), which Termination Amount shall be exclusive of any ------------------ Expenses paid pursuant to Section 5.13. (c) Any payment required to be paid, made pursuant to Parent Section 7.5(b) shall be made to Merger Sub by the Company not later than two business days after delivery to the Company by Merger Sub of notice of demand for payment and shall be made by wire transfer of immediately available funds to an account designated by Merger Sub. (d) The Company agrees that it shall pay to Merger Sub an amount equal to $450,000 (Merger Sub's documented Expenses directly related to this Agreement and the “Termination Fee”): (i) transactions contemplated hereby if this Agreement is terminated by Parent pursuant to Section 7.3(a7.1(e) or 7.1(f), Section 7.3(b) or Section 7.3(c) or pursuant and Merger Sub agrees that it shall pay to Section 7.3(d) as a result of a willful breach by the Company or an amount equal to the Company's documented Expenses directly related to this Agreement and the transactions contemplated hereby if this Agreement is terminated by the Company pursuant to Section 7.2(c7.1(g), in which case payment shall be made within two Business Days of such termination; or (ii) if (A) a Takeover Proposal shall have been made or proposed to the Company or its stockholders or otherwise publicly announced (whether or not conditional), (B) this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(a) or Section 7.2(c) and (C) within 18 months following the date of such termination, the Company or any of its Subsidiaries enters into any agreement in principle, arrangement, understanding or Contract providing for the implementation of a Takeover Proposal or shall consummate any Takeover Proposal (whether or not such Takeover Proposal was the same Takeover Proposal referred to in the foregoing clause (A)), in which case payment shall be made within two Business Days of the date on which the Company or such Subsidiary enters into such agreement in principle, arrangement, understanding or Contract or consummates such Takeover Proposal, as applicable. For purposes of the foregoing clause (C) only, references in the definition of the term “Takeover Proposal” to the figure “20%” shall be deemed to be replaced by the figure “40%”. (ce) Each of the The Company and Parent acknowledges that (i) the agreements contained in this Section 7.6 7.5 are an integral part of the transactions contemplated by this Agreement Agreement, and (ii) that, without these agreements, neither party Merger Sub would have entered not enter into this Agreement. Accordingly; accordingly, if either the Company or Parent fails to pay when due any amounts required to be paid by it pursuant to this Section 7.6 (promptly the “Expense Payor”) Termination Amount, and, in order to obtain such payment, the party seeking payment of Expenses (the “Expense Payee”) Merger Sub commences a Legal Action suit which results in a judgment against the Expense Payor Company for such amounts, then in addition to the amount of such judgmentTermination Amount, the Expense Payee Company shall be entitled pay to an amount from the Expense Payor equal to the fees, costs and expenses (including attorneys’ fees, costs and expenses) incurred by the Expense Payee Merger Sub's Expenses in connection with such Legal Actionsuit, together with interest from on the date amount of termination of this Agreement on all amounts so owed the Termination Amount at the prime rate per annum of Fleet National Bank in effect from time on the date such payment was required to time during such period (as published for each Business Day (or if such a day is not a Business Day, the immediately preceding Business Day) in the Wall Street Journal under the caption “Money Rates, Prime Rate”) plus 3%be made.