Common use of Expenses; Termination Fees Clause in Contracts

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses). (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), 9.3 and Section 5.11, 5.11 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent Meerkat and the Company shall share equally all fees and expenses, other than attorneys’ and accountants’ fees and expenses, incurred in relation to the filings by the Parties under any filing requirement under the HSR Act and any foreign antitrust Law applicable to this Agreement and the transactions contemplated hereby; provided, further however, that Meerkat and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)SEC. (b) If (i) (A) this Agreement is terminated by Meerkat or the Company pursuant to Section 9.1(e), or (B) this Agreement is terminated by the Company pursuant to Section 9.1(b) or Section 9.1(h), (ii) at any time after the date of this Agreement and prior to the Meerkat Stockholders’ Meeting an Acquisition Proposal with respect to Meerkat shall have been publicly announced, disclosed or otherwise communicated to the Meerkat Board (and shall not have been withdrawn) and (iii) within 12 months after the date of such termination, Meerkat enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Meerkat shall pay to the Company, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $2,000,000 (the “Company Termination Fee”), less any amount previously paid to the Company pursuant to Section 9.3(f), plus any amount payable to the Company pursuant to Section 9.3(h). (c) If (i) this Agreement is terminated by Meerkat pursuant to Section 9.1(d), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn), and (iii) within 12 months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then the Company shall pay to Meerkat, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $2,000,000 (the “Meerkat Termination Fee”), less any amount previously paid to Meerkat pursuant to Section 9.3(g), plus any amount payable to Meerkat pursuant to Section 9.3(h). (d) If this Agreement is terminated by Meerkat pursuant to Section 9.1(g), then the Company shall pay to Meerkat, concurrent with such termination, the Meerkat Termination Fee, in addition to any amount payable to Meerkat pursuant to Section 9.3(h) (e) If (i) this Agreement is terminated by Meerkat pursuant to Section 9.1(k) or (ii) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent Meerkat shall pay to the Company an amount equal to $1,950,000 (Company, concurrent with such termination, the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction, in addition to any amount payable to the Company pursuant to Section 9.3(h). (cf) (i) If this Agreement is terminated by Parent the Company pursuant to Section 9.1(k9.1(e), Parent shall pay to 9.1(h) or 9.1(m) or (ii) in the event of the failure of the Company within two Business Days to consummate the transactions to be contemplated at the Closing solely as a result of a Meerkat Material Adverse Effect as set forth in Section 8.5 (provided, that at such termination time all of the other conditions precedent to Meerkat’s obligation to close set forth in Section 6 and Section 7 have been satisfied by the Company, are capable of being satisfied by the Company Termination Fee. or have been waived by Meerkat), then Meerkat shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions (d) Any Company Termination Fee due under this Section 9.3 shall be paid such expenses, collectively, the “Third Party Expenses”), up to a maximum of $1,000,000, by wire transfer of same same-day funds. funds within ten Business Days following the date on which the Company submits to Meerkat true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that such Third Party Expenses shall not include any amounts for financial advisors to the Company except for reasonably documented out-of-pocket expenses otherwise reimbursable by the Company to such financial advisors pursuant to the terms of the Company’s engagement letter or similar arrangement with such financial advisors. (g) (i) If Parent this Agreement is terminated by Meerkat pursuant to Section 9.1(d) or 9.1(i) or (ii) in the event of the failure of Meerkat to consummate the transactions to be consummated at the Closing solely as a result of a Company Material Adverse Effect as set forth in Section 7.6, (provided, that at such time all of the other conditions precedent to the Company’s obligation to close set forth in Section 6 and Section 8 have been satisfied by Meerkat, are capable of being satisfied by Meerkat or have been waived by the Company), the Company shall reimburse Meerkat for all Third Party Expenses incurred by Meerkat up to a maximum of $1,000,000, by wire transfer of same-day funds within ten Business Days following the date on which Meerkat submits to the Company true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that such Third Party Expenses shall not include any amounts for financial advisors to Meerkat except for reasonably documented out-of-pocket expenses otherwise reimbursable by Meerkat to such financial advisors pursuant to the terms of Meerkat’s engagement letter or similar arrangement with such financial advisors. (h) If either Party fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paidpaid plus three percent. (ei) The Parties agree that, subject to Section 9.2, the payment of the Company Termination Fee shall, fees and expenses set forth in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute Section 9.3 shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 9.3, it being understood that in no event shall Parent either Meerkat or the Company be required to pay the amounts individual fees or damages payable pursuant to this Section 9.3 on more than one occasion and (ii) occasion. Subject to Section 9.2, following the payment of the Company Termination Fee fees and expenses set forth in this Section 9.3 by a Party, (xi) Parent such party shall have no further liability to the Company other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (yii) neither the Company nor any of its no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub such Party or seek to obtain any recovery, judgment or damages of any kind against such Parties Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliateaffiliate, agent or other Representative representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (ziii) the Company all other Parties and its their respective Affiliates shall be precluded from any other remedy against Parent, Merger Sub such Party and their respective its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (ix) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (iiy) without these agreements, the Parties would not enter into this Agreement and (iiiz) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger Exchange is consummated; provided, howeverfurther, that Parent and the Company AMMA shall also share equally pay for all fees and expenses incurred by engagement of any Exchange Agent and in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Registration Proxy Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid thereto. (i) If this Agreement is terminated by AMMA or SCWorx pursuant to a financial printer Section 9.1(f) and, at any time before the AMMA Stockholders’ Meeting, an Acquisition Proposal with respect to AMMA has been publicly announced, disclosed or the SEC (it being agreed that the cost of which is allocated otherwise communicated to the Company AMMA Board of Directors, then AMMA shall pay to SCWorx, within 10 Business Days after termination, a nonrefundable fee in an amount equal to $75,000 (the “SCWorx Termination Fee”), which such SCWorx Termination Fee shall be payable in cash, in addition to any amount payable to SCWorx pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred Section 9.3(b) or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction ExpensesSection 9.3(c). (bii) If (iA) this Agreement is terminated by the Company AMMA pursuant to Section 9.1(f9.1(d) or Section 9.1(g), (iiB) at any time before obtaining the Required SCWorx Stockholder Vote an Acquisition Proposal with respect to Parent shall have SCWorx has been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent SCWorx Board after of Directors, and (C) in the date of event this Agreement but prior to the termination of this Agreement and (iii) is terminated pursuant Section 9.1(d), within twelve 12 months after the date of such termination, Parent SCWorx enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent SCWorx shall pay to AMMA, within 10 Business Days after termination (or, if applicable, upon the Company earlier of such entry into a definitive agreement with respect to a Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,950,000 75,000 (the “Company AMMA Termination Fee”), which such AMMA Termination Fee may be payable in cash, in addition to any amount payable to AMMA pursuant to Section 9.3(c) within two Business Days of consummation of such Subsequent Transactionor Section 9.3(d). (cb) (i) If this Agreement is terminated by Parent SCWorx pursuant to Section 9.1(k9.1( f) or Section 9.1(h), Parent or (ii) in the event of a failure of SCWorx to consummate the transactions to be consummated at the Closing solely as a result of a AMMA Material Adverse Effect as set forth in Section 8.3 (provided, that at such time all of the other conditions precedent to AMMA’s obligation to close set forth in Article 6 and Article 7 of this Agreement have been satisfied by SCWorx, are capable of being satisfied by SCWorx or have been waived by AMMA), then AMMA shall pay reimburse SCWorx for all reasonable fees and expenses incurred by SCWorx in connection with this Agreement and the transactions contemplated hereby, including: (A) all fees and expenses incurred in connection with the preparation, printing and filing, as applicable, of the Proxy Statement (including any preliminary materials related thereto and all amendments and supplements thereto, as well as any financial statements and schedules thereto), excluding legal fees and expenses; and (B) all fees and expenses incurred in connection with the preparation and filing under any filing requirement of any Governmental Body applicable to this Agreement and the Company transactions contemplated hereby; provided, however, the fees and expenses for clauses (A) and (B) above (collectively referred to as the “Third-Party Expenses”) shall be capped at a maximum of $50,000 for such Third-Party Expenses; plus (C) reimbursement of all fees and expenses of SCWorx’s legal counsel in connection with preparation of the Proxy Statement (“Proxy Statement Expenses”). Such payment shall be made by wire transfer of same-day funds within two 10 Business Days following the date on which SCWorx submits to AMMA true and correct copies of reasonable documentation supporting such termination Third-Party Expenses and Proxy Statement Expenses. (c) (i) If this Agreement is terminated by AMMA pursuant to Section 9.1(d), Section 9.1(g), or Section 9.1(i), or (ii) in the Company Termination Feeevent of a failure of AMMA to consummate the transactions to be consummated at the Closing solely as a result of a SCWorx Material Adverse Effect as set forth in Section 7.3 (provided, that at such time all of the other conditions precedent to SCWorx’s obligation to close set forth in Article 6 and Article 8 of this Agreement have been satisfied by AMMA, are capable of being satisfied by AMMA or have been waived by SCWorx), then SCWorx shall reimburse AMMA for all Third-Party Expenses incurred by AMMA up to a maximum of $50,000, plus reimbursement of all fees and expenses of AMMA’s legal counsel in connection with preparation of the Proxy Statement by wire transfer of same-day funds within 10 Business Days following the date on which AMMA submits to SCWorx true and correct copies of reasonable documentation supporting such Third-Party Expenses and Proxy Statement Expenses. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent either Party fails to pay when due any amount payable by it such Party under this Section 9.39.3(b), Section 9.3(c), or Section 9.3(d), then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.38.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as (as published in The the Wall Street Journal or any successor theretoJournal)) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree thatthat the payment of the fees and expenses set forth in this Section 9.3, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 9.3, it being understood that in no event shall Parent either AMMA or SCWorx be required to pay the amounts fees or damages payable pursuant to this Section 9.3 on more than one occasion and (ii) following occasion. Subject to Section 9.2, the payment of the Company Termination Fee (x) Parent shall have no further liability to fees and expenses set forth in this Section 9.3, and the Company in connection with or arising out provisions of this Agreement or the termination thereofSection 10.10, any breach of this Agreement by Parent giving rise to such termination, or the failure each of the Contemplated Transactions to be consummatedParties and their respective Affiliates will not have any liability, (y) neither the Company nor any of its Affiliates shall will not be entitled to bring or maintain any other claim, action or proceeding against Parent the other, shall be precluded from any other remedy against the other, at law or Merger Sub in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against such Parties the other (or any partner, member, stockholdershareholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereofof this Agreement, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 9.3, are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 9.3, is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all out-of-pocket fees and expenses expenses, other than accountants' and attorneys' fees, incurred in relation to connection with: (i) the filing, printing and filing with the SEC mailing of the Form S-4 Registration Statement (including any financial statements and exhibits) the Joint Proxy Statement/Prospectus and any amendments or supplements thereto thereto; and paid to a financial printer or (ii) the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred filing by the Company in connection with parties hereto of any notice or other document under the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)HSR Act. (b) If this Agreement is terminated: (i) this Agreement is terminated by Parent pursuant to Section 8.1(f); (ii) by the Company pursuant to Section 9.1(f8.1(i); (iii) by the Company pursuant to Section 8.1(b) or 8.1(d) following a Company Change in Recommendation; or (iv) by Parent or the Company pursuant to Section 8.1(d), and in the case of clause "(iiiv)" of this sentence: (A) at or prior to the Company Stockholders' Meeting an Acquisition Proposal with respect to Parent an Alamo Corporation shall have been publicly announced disclosed, announced, commenced, submitted or disclosed made (and shall not have been withdrawn); and (B) on or otherwise communicated prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to an Alamo Corporation is consummated; or (2) a definitive agreement relating to an Acquisition Transaction with respect to an Alamo Corporation is entered into by an Alamo Corporation, then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $9 million (the "Company Termination Fee"). The Company Termination Fee shall be paid as follows: (x) in the case of clause "(i)" of the preceding sentence, within two business days after termination of this Agreement; (y) in the case of clause (ii) and (iii), simultaneously with the Company's termination of the Agreement; and (z) in the case of clause "(iv)" of the preceding sentence, within two business days after the first to occur of the consummation of the Acquisition Transaction or the entering into by an Alamo Corporation of the definitive agreement. For purposes of Section 8.3(b)(iv) only, the term Acquisition Transaction shall be deemed to be modified so that all references to "15%" contained in the definition of "Acquisition Transaction" when it is used in the definition of Acquisition Proposal or elsewhere in Section 8.3(b)(iv) shall be deemed to be a reference to "50%." If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) and the Company is not then obligated to pay the Company Termination Fee, then the Company shall pay to Parent Board in cash within two business days after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 2 million (the “"Company Expense Reimbursement Amount") in respect of Parent's expenses in connection with this Agreement, which shall be credited against any Company Termination Fee”) within two Business Days of consummation of such Subsequent TransactionFee otherwise payable pursuant to this Section 8.3(b), if any. (c) If this Agreement is terminated terminated: (i) by the Company pursuant to Section 8.1(g); (ii) by Parent pursuant to Section 9.1(k8.1(b); (iii) by Parent pursuant to Section 8.1(b) or 8.1(e) following a Parent Change in Recommendation; or (iv) by Parent or the Company pursuant to Section 8.1(e), and in the case of clause "(iv)" of this sentence: (A) at or prior to the Parent Stockholders' Meeting an Acquisition Proposal with respect to an Abeline Corporation shall have been disclosed, announced, commenced, submitted or made (and shall not have been withdrawn); and (B) on or prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to an Abeline Corporation is consummated; or (2) a definitive agreement relating to an Acquisition Transaction with respect to an Abeline Corporation is entered into by an Abeline Corporation, then Parent shall pay to the Company, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $14 million (the "Parent Termination Fee" and, together with the Company Termination Fee, as applicable, a "Termination Fee"). The Parent Termination Fee shall be paid as follows: (x) in the case of clause "(i)" of the preceding sentence, within two business days after termination of this Agreement; (y) in the case of clause (ii) and (iii), simultaneously with Parent's termination of the Agreement; and (z) in the case of clause "(iv)" of the preceding sentence, within two business days after the first to occur of the consummation of the Acquisition Transaction or the entering into by an Abeline Corporation of the definitive agreement. For purposes of Section 8.3(c)(iv) only, the term Acquisition Transaction shall be deemed to be modified so that all references to "15%" contained in the definition of "Acquisition Transaction" when it is used in the definition of Acquisition Proposal or elsewhere in Section 8.3(c)(iv) shall be deemed to be a reference to "50%." If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e) and Parent is not then obligated to pay the Parent Termination Fee, then Parent shall pay to the Company in cash within two Business Days business days after the termination of such termination this Agreement an amount equal to $2 million (the "Parent Expense Reimbursement Amount" and, together with the Company Expense Reimbursement Amount, as applicable, an "Expense Reimbursement Amount") in respect of the Company's expenses in connection with this Agreement, which shall be credited against any Parent Termination FeeFee otherwise payable pursuant to this Section 8.3(c), if any. (d) Any Company Notwithstanding any other provision of this Agreement to the contrary, the parties agree that, except as provided in the last sentence of this Section 8.3(d), the payments contemplated by this Sections 8.3 represent the sole and exclusive remedy of the parties and that, except for the payments expressly set forth in this Section 8.3 and as provided in the last sentence of this Section 8.3(d), each of the parties and their respective affiliates shall have no liability, shall not be entitled to bring or maintain any other claim, action or proceeding against the other, shall be precluded from any other remedy against the other, at law or in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against the other (or any partner, member, stockholder, director, officer, employee, Subsidiary, affiliate, agent or other representative of such party or parties) in connection with or arising out of the termination of this Agreement, any breach of or by any party giving rise to such termination or the failure of the Merger and the other transactions contemplated by this Agreement to be consummated. The parties agree that if (i) the termination of this Agreement resulted from the willful and material inaccuracy in or breach of any representation, warranty, covenant, obligation or other provision contained in this Agreement, (ii) an Expense Reimbursement Amount and/or Termination Fee due under is payable pursuant to the terms of this Section 9.3 Agreement at or following a termination hereof and (iii) Parent or the Company, as applicable, has (A) notified the other party that it is not accepting any such Expense Reimbursement Amount or Termination Fee payable to Parent or the Company hereunder and is waiving any right thereto, which notification and waiver shall be occur, if at all, (1) at the time of such termination of this Agreement by such party, if such party is the party terminating this Agreement, or (2) within five business days following such termination of this Agreement, if the other party is the party terminating this Agreement, and (B) refunded such Expense Reimbursement Amount or Termination Fee in full to the party paying such Expense Reimbursement Amount or Termination Fee within five business days following payment thereof, if such Expense Reimbursement Amount or Termination Fee has been paid by wire transfer hereunder prior to such notification, then payment of same day funds. the Expense Reimbursement Amount and/or Termination Fee shall not represent the sole and exclusive remedy of the parties hereunder. (e) If Parent a party fails to pay when due any amount payable by it such party under this Section 9.38.3, then Parent shall then: (i) such party shall reimburse the Company other party for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other party of its rights under this Section 9.3, 8.3; and (ii) such party shall pay to the Company other party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on through the date such overdue amount is actually paid to the Company other party in full) at a rate per annum equal to the “lower of: (i) 350 basis points over the "prime rate” " (as published in The Wall Street Journal announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and ; or (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement maximum rate permitted by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payableapplicable Legal Requirements.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated by this Agreement shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses). (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii8.1(b) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board Section 8.1(d) and after the date of this Agreement but prior to the such termination of this Agreement (i) an Acquisition Proposal shall have been publicly disclosed, announced, commenced or made and not publicly withdrawn and (iiiii) within twelve months after on or prior to the date first anniversary of such terminationtermination the Company shall have entered into any binding, Parent enters into a definitive agreement written Contract for a Subsequent Transaction in respect of the any Acquisition Proposal referred to in clause (ii)Transaction, then Parent the Company shall pay to Parent, at the Company time specified in Section 8.3(d), a fee in an amount equal to $1,950,000 1,900,000 (the “Company Termination Breakup Fee”) within two Business Days (it being understood that for purposes of consummation this Section 8.3(b), all references to “15%” in the definition of such Subsequent TransactionAcquisition Proposal shall be treated as references to “50%”). (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k8.1(e) or by the Company pursuant to Section 8.1(h), Parent then the Company shall pay to Parent, at the Company within two Business Days of such termination time specified in Section 8.3(d), a fee in an amount equal to the Company Termination Breakup Fee. (d) Any payment to be made by the Company Termination Fee due under to Parent pursuant to this Section 9.3 8.3 shall be paid made by wire transfer of same day fundsimmediately available funds to an account designated by Parent. In the case of termination of this Agreement pursuant to Section 8.1(b) or Section 8.1(d), any payment required to be made pursuant to Section 8.3(b) shall be made by the Company no later than five (5) Business Days after the execution of the Contract referred to in Section 8.3(b). In the case of termination of this Agreement by Parent pursuant to Section 8.1(e), any payment required to be made pursuant to Section 8.3(c) shall be made no later than five (5) Business Days after such termination. In the case of termination of this Agreement by the Company pursuant to Section 8.1(h), any payment required to be made pursuant to Section 8.3(c) shall be made concurrently with, and as a condition to, such termination. (e) The parties acknowledge and agree that the payment provisions set forth in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and are included herein in order to induce Parent to enter into this Agreement. If Parent the Company fails to pay when due any amount payable by it under this Section 9.3such amount, then and Parent shall (i) reimburse commences a suit which results in a judgment against the Company for reasonable any such amount due or any portion thereof, then the Company shall pay Parent its costs and expenses (including reasonable attorney’s fees and disbursements of counseldisbursements) incurred by it in connection with such suit, together with interest through the collection date of such overdue payment on any amount and the enforcement by the Company of its rights due under this Section 9.3, and 8.3 at the prime rate as quoted on Bloomberg screen (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor theretoPRIMBB Index) in effect on the date such overdue amount payment was originally required to be paidmade. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated by this Agreement shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses (and each party shall promptly reimburse the other for any portion of the fees paid on such party’s behalf by the other party), other than attorneys’ and accountants’ fees, incurred in relation connection with the filing by the parties hereto of the pre-merger notification and report forms relating to the printing Merger under the HSR Act and the filing with of any notice or other document under any applicable foreign antitrust law or regulation. (b) In the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments event that this Agreement is terminated by Parent or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to Section 8.1(d), then the foregoing Company shall be a Company Transaction Expense). It is understood and agreed that all pay to Parent cash in an amount equal to twice the aggregate amount of expenses, including legal fees and expenses incurred or to be other professional fees, documented as incurred by the Company Parent or any of its affiliates in connection with the Contemplated Transactions and preparingtransactions contemplated under this Agreement, negotiating and entering into provided, however, that under no circumstances shall the amount owed under this Section 8.3(b) exceed Two Million Dollars ($2,000,000) (the “Expense Amount”). In the event of termination of this Agreement and by Parent pursuant to Section 8.1(d), the performance Company shall pay the Expense Amount promptly, but in no event later than two business days following such termination. In the event of its obligations under termination of this Agreement by the Company pursuant to Section 8.1(d), the Company shall pay the Expense Amount concurrently with, and as a condition precedent to, such termination. (c) In the event that: (i) (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), and (B) at or prior to the time of the termination of this Agreement an Acquisition Transaction shall have been publicly disclosed, announced, commenced, submitted or made, and (C) within nine (9) months after such termination the Company enters into a letter of intent or other Contract relating to an Acquisition Transaction; or (ii) (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b), and (B) at the time of the termination of this Agreement an Acquisition Transaction shall have been disclosed, announced, commenced, submitted or made, and (C) within nine (9) months after such termination the Company enters into a letter of intent or other Contract relating to an Acquisition Transaction; or (iii) this Agreement is terminated by Parent pursuant to Section 8.1(e), then, in each case of clauses (i) through (iii) above, the Company shall pay to Parent, in cash a nonrefundable fee in the amount equal to $7,000,000 (the “Termination Fee”). (d) The Termination Fee shall be paid by the Company in cash at simultaneously with or prior to the Closing (to, and shall be Company Transaction Expenses). (b) If (i) this Agreement is terminated by in either case as a condition precedent to, the Company pursuant entering into the letter of intent or other Contract relating to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to as contemplated in clause (iiC) of any of Sections 8.3(c)(i), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) 8.3(c)(ii). If this Agreement is terminated by Parent pursuant to Section 9.1(k8.1(e), then the Termination Fee shall be paid to Parent shall pay to by the Company within two Business Days of business days following such termination the Company Termination Feetermination. (de) Any Company Termination Fee due under The parties acknowledge and agree that the agreements contained in this Section 9.3 shall be paid 8.3 are an integral part of the transactions contemplated by wire transfer of same day fundsthis Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If Parent the Company fails to pay when due any amount payable by it under this Section 9.38.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) shall pay to the Company Parent interest on such overdue amount (for 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 Company Parent in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated by this Agreement shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; providedPROVIDED, howeverHOWEVER, that (i) Parent and the Company shall also share equally all fees and expenses expenses, other than attorneys' fees, incurred in relation to connection with the filing, printing and filing with the SEC mailing of the Form S-4 Registration Statement (including any financial statements and exhibits) the Prospectus/Proxy Statement and any amendments or supplements thereto thereto. (b) In consideration of the substantial time, expense and paid to a financial printer forgoing other opportunities invested by the parties in connection with this Agreement and the transactions contemplated by this Agreement, (i) In the event this Agreement is terminated by Parent or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction ExpenseSection 8.1(d). It is understood and agreed that all fees and expenses incurred , by Parent pursuant to Section 8.1(f) or to be incurred by the Company pursuant to Section 8.1(g)(ii), then, in connection with either such case, Parent shall pay to the Contemplated Transactions and preparingCompany, negotiating and entering into in cash at the time specified in the next sentence, a nonrefundable fee in the amount of $1,000,000. In the case of termination of this Agreement by Parent pursuant to Section 8.1(d), the fee referred to in the preceding sentence shall be paid by Parent prior to such termination, and in the performance case of its obligations under termination of this Agreement by the Company pursuant to Section 8.1(d) or Section 8.1(g)(ii), or by Parent pursuant to Section 8.1(f), the fee referred to in the preceding sentence shall be paid by Parent within two business days after such termination. (ii) In the event this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e) or by Parent pursuant to Section 8.1(g)(i), then the Company shall pay to Parent, in cash at the time specified in the next sentence, a nonrefundable fee in the amount of $1,000,000. In the case of termination of this Agreement by the Company pursuant to Section 8.1(e), the fee referred to in the preceding sentence shall be paid by the Company in cash at or prior to such termination, and in the Closing (and shall be Company Transaction Expenses). (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date case of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k8.1(e) or Section 8.1(g)(i), Parent the fee referred to in the preceding sentence shall pay to be paid by the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to business days after such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated by this Agreement shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that (i) Parent and the Company shall also share equally all fees and expenses expenses, other than attorneys' fees, incurred in relation to connection with the filing, printing and filing with the SEC mailing of the Form S-4 Registration Statement (including any financial statements and exhibits) the Prospectus/Proxy Statement and any amendments or supplements thereto thereto. (b) In consideration of the substantial time, expense and paid to a financial printer forgoing other opportunities invested by the parties in connection with this Agreement and the transactions contemplated by this Agreement, (i) In the event this Agreement is terminated by Parent or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction ExpenseSection 8.1(d). It is understood and agreed that all fees and expenses incurred , by Parent pursuant to Section 8.1(f) or to be incurred by the Company pursuant to Section 8.1(g)(ii), then, in connection with either such case, Parent shall pay to the Contemplated Transactions and preparingCompany, negotiating and entering into in cash at the time specified in the next sentence, a nonrefundable fee in the amount of $1,000,000. In the case of termination of this Agreement by Parent pursuant to Section 8.1(d), the fee referred to in the preceding sentence shall be paid by Parent prior to such termination, and in the performance case of its obligations under termination of this Agreement by the Company pursuant to Section 8.1(d) or Section 8.1(g)(ii), or by Parent pursuant to Section 8.1(f), the fee referred to in the preceding sentence shall be paid by Parent within two business days after such termination. (ii) In the event this Agreement is terminated by Parent or the Company pursuant to Section 8.1(e) or by Parent pursuant to Section 8.1(g)(i), then the Company shall pay to Parent, in cash at the time specified in the next sentence, a nonrefundable fee in the amount of $1,000,000. In the case of termination of this Agreement by the Company pursuant to Section 8.1(e), the fee referred to in the preceding sentence shall be paid by the Company in cash at or prior to such termination, and in the Closing (and shall be Company Transaction Expenses). (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date case of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k8.1(e) or Section 8.1(g)(i), Parent the fee referred to in the preceding sentence shall pay to be paid by the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to business days after such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all out-of-pocket fees and expenses expenses, other than accountants’ and attorneys’ fees, incurred in relation to connection with the filing, printing and filing with the SEC mailing of the Form S-4 Registration Statement (including any financial statements and exhibits) the Joint Proxy Statement/Prospectus and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)thereto. (b) If this Agreement is terminated: (i) this Agreement is terminated by Parent pursuant to Section 8.1(f); or (ii) by the Company pursuant to Section 9.1(f8.1(i), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after by the date of such termination, Company or Parent enters into pursuant to Section 8.1(d) following a definitive agreement for a Subsequent Transaction Company Change in respect of the Acquisition Proposal referred to in clause (ii)Recommendation, then Parent the Company shall pay to Parent, in cash at the Company an time specified in the following sentence, a nonrefundable fee in the amount equal to of $1,950,000 750,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid as follows: (x) in the case of clause “(i)” of the preceding sentence or in the case of termination by Parent in the case of clause “(iii)” of the preceding sentence, within two business days after termination of this Agreement; and (y) in all other instances, simultaneously with the Company’s termination of the Agreement. In addition, if this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(d) in the absence of a Company Change in Recommendation, then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of Parent’s and Merger Sub’s Expenses, but not to exceed $250,000 (the “Company Reimbursement Fee”). The Company Reimbursement Fee shall be paid within three (3) Business Days after the later of consummation the termination of this Agreement and the delivery of documentation of such Subsequent TransactionExpenses. For purposes of this paragraph (b) and the next paragraph (c), the “Expenses” of a party means all reasonable out-of-pocket documented fees and expenses (including all fees and expenses of counsel, accountants, consultants, financial advisors and investment bankers) incurred by such party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution, financing and performance of this Agreement and all other matters related to the transactions contemplated by this Agreement. (c) If this Agreement is terminated terminated: (i) by the Company pursuant to Section 8.1(g), (ii) by Parent pursuant to Section 9.1(k8.1(h); or (iii) by Parent or the Company pursuant to Section 8.1(e) following a Parent Change in Recommendation, then Parent shall pay to the Company within two Business Days Company, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of such termination $750,000 (the “Parent Termination Fee” and, together with the Company Termination Fee, as applicable, a “Termination Fee”). The Parent Termination Fee shall be paid as follows: (x) in the case of clause “(i)” of the preceding sentence or in the case of termination by the Company in the case of clause “(iii)” of the preceding sentence, within two business days after termination of this Agreement and (y) in all other instances, simultaneously with Parent’s termination of this Agreement. In addition, if this Agreement is terminated by either the Company or Parent pursuant to Section 8.1(e) in the absence of a Parent Change in Recommendation, then Parent shall pay to Company, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of the Company’s Expenses, but not to exceed $250,000 (the “Parent Reimbursement Fee”). The Parent Reimbursement Fee shall be paid within three (3) Business Days after the later of the termination of this Agreement and the delivery of documentation of such Expenses. (d) Any Company Notwithstanding any other provision of this Agreement to the contrary, the parties agree that, except as provided in the last sentence of this Section 8.3(d), the payments contemplated by this Sections 8.3 represent the sole and exclusive remedy of the parties and that, except for the payments expressly set forth in this Section 8.3 and as provided in the last sentence of this Section 8.3(d), each of the parties and their respective affiliates shall have no liability, shall not be entitled to bring or maintain any other claim, action or proceeding against the other, shall be precluded from any other remedy against the other, at law or in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against the other (or any partner, member, stockholder, director, officer, employee, Subsidiary, affiliate, agent or other representative of such party or parties) in connection with or arising out of the termination of this Agreement, any breach of or by any party giving rise to such termination or the failure of the Merger and the other transactions contemplated by this Agreement to be consummated. The parties agree that if (i) the termination of this Agreement resulted from the willful and material inaccuracy in or breach of any representation, warranty, covenant, obligation or other provision contained in this Agreement, (ii) a Termination Fee due under is payable pursuant to the terms of this Section 9.3 Agreement at or following a termination hereof and (iii) Parent or the Company, as applicable, has (A) notified the other party that it is not accepting any such Termination Fee payable to Parent or the Company hereunder and is waiving any right thereto, which notification and waiver shall be occur, if at all, (1) at the time of such termination of this Agreement by such party, if such party is the party terminating this Agreement, or (2) within five business days following such termination of this Agreement, if the other party is the party terminating this Agreement, and (B) refunded such Termination Fee in full to the party paying such Termination Fee within five business days following payment thereof, if such Termination Fee has been paid by wire transfer hereunder prior to such notification, then payment of same day funds. the Termination Fee shall not represent the sole and exclusive remedy of the parties hereunder. (e) If Parent a party fails to pay when due any amount payable by it such party under this Section 9.38.3, then Parent shall then: (i) such party shall reimburse the Company other party for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other party of its rights under this Section 9.3, 8.3; and (ii) such party shall pay to the Company other party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on through the date such overdue amount is actually paid to the Company other party in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as published in The Wall Street Journal announced by Bank of America, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and ; or (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement maximum rate permitted by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payableapplicable Legal Requirements.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party or a Holder incurring such expenses, whether or not the Merger Transaction is consummated; provided, however, that Parent Vital and Immunic shall share equally all fees and expenses, other than attorneys’ and accountants’ fees and expenses, incurred in relation to the filings by the Parties under any filing requirement under the HSR Act and any foreign antitrust Legal Requirement applicable to this Agreement and the Company Contemplated Transactions; and provided, further, that Vital and Immunic shall also share equally all fees and expenses (i) incurred in relation to the filing of the Nasdaq Listing Application with Nasdaq (ii) of counsel to Vital in connection with obtaining listing of the combined company on the Nasdaq Global Market, (iii) by engagement of a proxy soliciting firm in connection with obtaining approval of the Vital Stockholder Matters, (iv) by engagement of the Exchange Agent and (v) in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)thereto. (b) (i) If (iA) this Agreement is terminated by the Company Vital or Immunic pursuant to Section 9.1(f9.1(d) or Section 9.1(e), (iiB) at any time before the Vital Stockholders’ Meeting an Acquisition Proposal with respect to Parent shall have Vital has been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Vital Board after of Directors and (C) in the date of event this Agreement but prior is terminated pursuant to the termination of this Agreement and (iiiSection 9.1(d) within twelve (12) months after the date of such termination, Parent Vital enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent Vital shall pay to Immunic, within five (5) Business Days after termination (or, if applicable, upon the Company earlier of such entry into a definitive agreement with respect to a Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,950,000 500,000 (the “Company Immunic Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent ), in addition to any amount payable to Immunic pursuant to Section 9.1(k9.3(c) or Section 9.3(e), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d5.6(d), and Section 5.115.9, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally pay all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense)SEC. It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)Closing. (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 500,000 (the “Company Termination Fee”) within two ten (10) Business Days of such entry into a definitive agreement or consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k9.1(j), Parent shall pay to the Company within two ten (10) Business Days of such termination the Company Termination Fee. (d) If (i) this Agreement is terminated by Parent pursuant to Section 9.1(g), (ii) an Acquisition Proposal with respect to the Company shall have been publicly announced or disclosed or otherwise communicated to the Company or the Company Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, the Company consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then the Company shall pay to Parent an amount equal to $500,000 (the “Parent Termination Fee”) within ten (10) Business Days of such entry into a definitive agreement or consummation of such Subsequent Transaction. (e) If this Agreement is terminated by the Company pursuant to Section 9.1(k), the Company shall pay to Parent within ten (10) Business Days of such termination the Parent Termination Fee. (f) Any Company Termination Fee or Parent Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent a Party fails to pay when due any amount payable by it under this Section 9.3, then Parent such Party shall (i) reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company such Party of its rights under this Section 9.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (eg) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. . (h) The Parties agree that, subject to Section 9.2, payment of the Parent Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement, it being understood that in no event shall the Company be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and following payment of the Parent Termination Fee (x) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. (i) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.117.03, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses). (b) If Tri-Valley agrees to pay HCC an amount equal to $1.5 million (the “Termination Fee”) if this Agreement is terminated: (i) this Agreement is terminated by the Company HCC pursuant to Section 9.1(f7.01(e); (ii) by Tri-Valley pursuant to Section 7.01(h); or (iii) (A) by HCC or Tri-Valley pursuant to Section 7.01(b), (iiB) by HCC or Tri-Valley pursuant to Section 7.01(d) or (C) by HCC pursuant to Section 7.01(f) and, in any case of clause (A), (B) or (C), (x) on or before the date of any such termination an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed announced, disclosed, or otherwise communicated made known to Parent the Tri-Valley shareholders, the senior management of Tri-Valley or the Parent Tri-Valley Board after the date of this Agreement but prior to the termination of this Agreement and not withdrawn, and (iiiy) within twelve months after the date of such termination, Parent Tri-Valley enters into a definitive agreement for a Subsequent Transaction in with respect of the to such Acquisition Proposal, or such Acquisition Proposal referred is consummated or Tri-Valley enters into any letter of intent, agreement in principle, acquisition agreement or similar contract with respect to in clause an Acquisition Proposal within twelve (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”12) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company months following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to . The term “Acquisition Proposal” for purposes of this Section 9.3 on more than one occasion and (ii7.03(b)(iii) following payment of the Company Termination Fee (x) Parent shall have no further liability the meaning set forth in Section 8.14, except that all references to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates 10% shall be entitled deemed references to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated50%. Each of the Parties acknowledges The parties acknowledge that (i) the agreements contained in this Section 9.3 7.03 are an integral part of the Contemplated TransactionsTransactions and that, (ii) without these agreements, the Parties parties would not enter into this Agreement. The parties further acknowledge and agree that the remedies set forth in this Section 7.03(b) shall be the sole and exclusive remedies for any losses or damages incurred by HCC or HBC arising from the termination of this Agreement and (iii) any amount payable pursuant to any Section giving rise to Tri-Valley’s or HCC’s obligation to pay such amount, except that payment of the fees described in this Section 9.3 is 7.03(b) shall not a penalty, but rather is liquidated damages be in a reasonable amount that will compensate the Company in the circumstances in which such amount is payablelieu of liability pursuant to Section 7.02(b).

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and that: Talos shall make a nonrefundable cash payment to the Company shall also share equally Company, in an amount equal to the aggregate amount of all fees and expenses incurred in relation to the printing (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing with the SEC fees) that have been paid or that may become payable by or on behalf of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions preparation and preparing, negotiating and entering into negotiation of this Agreement and otherwise in connection with the performance of its obligations under Merger (up to a maximum aggregate equal to $1,250,000) (the “Expense Reimbursement”) if this Agreement is terminated (i) by the Company or Talos pursuant to Section 9.1(b) or 9.1(g) and on or before the date of any such termination, a Talos Acquisition Proposal shall have been publicly announced or disclosed or a Talos Acquisition Proposal has otherwise been communicated to the Talos Board, or (ii) by the Company or Talos pursuant to Section 9.1(e) or 9.1(k). Any Expense Reimbursement required to be made (A) as the result of a termination of this Agreement by Talos shall be paid by the Company in cash at or Talos prior to the Closing time of such termination; and (and B) as the result of termination of this Agreement by the Company shall be Company Transaction Expenses)paid by Talos within two Business Days after such termination. (bi) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f) or (l), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent Talos shall pay to the Company Company, within 2 Business Days after termination of the Agreement, a nonrefundable fee in an amount equal to $1,950,000 3,220,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transactionless any expenses previously reimbursed pursuant to Section 9.3(a)). (cii) If this Agreement is terminated by Parent Talos pursuant to Section 9.1(k9.1(i), Parent Talos shall pay to the Company within two Business Days Company, prior to the effectiveness of such the termination the Company Termination Feeof this Agreement, a nonrefundable fee in an amount equal to $3,220,000. (diii) Any If this Agreement is terminated by Talos or the Company Termination Fee due under pursuant to Sections 9.1(b) or (e) or (g), and (1) at any time before the Talos Stockholder Meeting a Talos Acquisition Proposal shall have been publicly announced, disclosed or otherwise communicated to Talos’s Board of Directors and (2) within 12 months of the date of termination of this Agreement, Talos enters into a definitive agreement with respect to a Talos Acquisition Proposal or consummates a transaction contemplated by a Talos Acquisition Proposal, Talos shall pay to the Company, upon consummation of such Acquisition Transaction, a nonrefundable fee in an amount equal to $3,220,000 (less any expenses previously reimbursed pursuant to Section 9.3(a)); provided, however, that for purposes of this Section 9.3 9.3(b)(iii), all references to “fifteen percent (15%)” in the definition of “Talos Acquisition Proposal” shall be paid deemed to be references to “fifty percent (50%)”. (iv) If this Agreement is terminated by wire transfer Talos pursuant to Section 9.1(d), the Company shall pay to Talos, within 2 Business Days after termination of same day funds. the Agreement, a nonrefundable fee in an amount equal to $2,275,000. (v) If Parent this Agreement is terminated by the Company pursuant to Section 9.1(j), the Company shall pay to Talos a nonrefundable fee in an amount equal to $2,275,000. (c) If either Party fails to pay when due any amount payable by it such Party under this Section 9.39.3(b), then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (ed) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood acknowledge that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactionstransactions contemplated by this Agreement and that, (ii) without these agreements, the Parties would not enter into this Agreement. If this Agreement and (iii) any amount payable is terminated pursuant to this a provision in Section 9.3 that requires payment of a termination fee, then such payment shall be an exclusive remedy hereunder for the Party that actually receives such fee (and no other remedy, including, without limitation, under Section 9.2 shall be available to such Party), and if this Agreement is terminated pursuant to a provision in Section 9.3 that does not require payment of a penaltytermination fee, but rather is liquidated damages in a reasonable amount that will compensate then the Company in the circumstances in which such amount is payableParties may pursue any remedies available hereunder.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, 8.3 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent (i) Korro shall pay the costs and expenses incurred in relation to the filings by the Parties under any antitrust Law applicable to this Agreement and the Company transactions contemplated hereby, and (ii) that Frequency and Korro shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)SEC. (b) If (i) this Agreement is terminated by the Company Frequency or Korro pursuant to Section 9.1(f8.1(e), (ii) at any time after the date of this Agreement and prior to the Frequency Stockholder Meeting an Acquisition Proposal with respect to Parent Frequency shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Frequency Board after the date of this Agreement but prior to the termination of this Agreement (and shall not have been withdrawn) and (iii) within twelve 12 months after the date of such termination, Parent Frequency enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent Frequency shall pay to the Company Korro, within four Business Days after such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction1,500,000. (c) If this Agreement is terminated by Parent Korro pursuant to Section 9.1(k8.1(f), Parent then Frequency shall pay to the Company Korro, within two four Business Days of such termination the Company Termination Feeafter termination, a nonrefundable fee in an amount equal to $1,500,000. (d) Any Company Termination Fee due under If this Agreement is terminated by Frequency pursuant to Section 9.3 8.1(d) or Section 8.1(g), then Korro shall be paid by wire transfer of same day funds. pay to Frequency, within four Business Days after termination, a nonrefundable fee in an amount equal to $4,000,000. (e) If Parent either Party fails to pay when due any amount payable by it under this Section 9.38.3, then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.3, 8.3 and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paidpaid plus three percent. (ef) The Parties agree that, subject to Section 9.28.2, the payment of the Company Termination Fee shall, fees and expenses set forth in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute Section 8.3 shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 8.3 that result in the payment of such fees, it being understood that in no event shall Parent either Frequency or Korro be required to pay the amounts individual fees or damages payable pursuant to this Section 9.3 8.3 on more than one occasion occasion. Subject to Section 8.2, following the termination of this Agreement under the circumstances described in this Section 8.3 and (ii) following the payment of the Company Termination Fee fees set forth in this Section 8.3 by a Party, (xi) Parent such Party shall have no further liability to the Company other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (yii) neither the Company nor any of its no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub such Party or seek to obtain any recovery, judgment or damages of any kind against such Parties Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliateaffiliate, agent or other Representative representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (ziii) the Company all other Parties and its their respective Affiliates shall be precluded from any other remedy against Parent, Merger Sub such Party and their respective its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (ix) the agreements contained in this Section 9.3 8.3 are an integral part of the Contemplated Transactions, (iiy) without these agreements, the Parties would not enter into this Agreement and (iiiz) any amount payable pursuant to this Section 9.3 8.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), 9.03 and Section 5.115.12, all fees costs and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated, including the fees, expenses and disbursements of its Representatives; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement Form S-4 (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that for avoidance of doubt, excluding any costs incurred in the cost preparation of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expensessuch documents). (b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(f9.01(b)(iii), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote, an Acquisition Proposal with respect to Parent shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but (and shall not have been publicly withdrawn prior to obtaining the termination of this Agreement Required Company Stockholder Vote), and (iii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), or consummates a Subsequent Transaction; then Parent shall pay to the Company Company, within ten (10) Business Days after the first to occur of entry into a definitive agreement and consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $1,950,000 500,000 (the “Company Termination Fee”), in addition to any amount payable to the Company pursuant to Section 9.03(h) within two Business Days of consummation of such Subsequent Transactionor Section 9.03(j). (c) If this Agreement is terminated by Parent the Company pursuant to Section 9.1(k9.01(d)(i), then Parent shall pay to the Company Company, within two ten (10) Business Days of such termination after termination, the Company Termination Fee, in addition to any amount payable to the Company pursuant to Section 9.03(h) or Section 9.03(j). (d) Any If (i) this Agreement is terminated by Parent pursuant to Section 9.01(c)(i), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote, an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been publicly withdrawn prior to obtaining the Required Company Stockholders Vote), and (iii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction; then the Company shall pay to Parent, within ten (10) Business Days after the first to occur of entry into a definitive agreement and consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $500,000 (the “Parent Termination Fee”), in addition to any amount payable to Parent pursuant to Section 9.03(i) or Section 9.03(j). (e) If this Agreement is terminated by Parent pursuant to Section 9.01(c)(ii), then the Company shall pay to Parent, within ten (10) Business Days after termination, the Parent Termination Fee, in addition to any amount payable to Parent pursuant to Section 9.03(i) or Section 9.03(j). (f) If this Agreement is terminated by Parent pursuant to Section 9.01(c)(iv), then Parent shall pay to the Company, concurrent with such termination, the Company Termination Fee due under Fee, in addition to any amount payable to the Company pursuant to Section 9.03(h) or Section 9.03(j). (g) If this Agreement is terminated by the Company pursuant to Section 9.3 9.01(d)(iii), then the Company shall be paid pay to Parent, concurrent with such termination, the Parent Termination Fee, in addition to any amount payable to Parent pursuant to Section 9.03(i) or Section 9.03(j). (h) If (i) this Agreement is terminated by the Company pursuant to Section 9.01(b)(iii), Section 9.01(d)(i) or Section 9.01(d)(ii), (ii) this Agreement is terminated by Parent pursuant to Section 9.01(b)(iii) or Section 9.01(c)(iv), or (iii) the Company fails to consummate the Contemplated Transactions solely as a result of a Parent Material Adverse Effect as set forth in Section 8.05 (provided, that at such time all of the other conditions precedent to Parent’s obligation to close set forth in Article VI and Article VII have been satisfied by the Company, are capable of being satisfied by the Company or have been waived by Parent), then Parent shall reimburse the Company for all of its Third Party Expenses, up to a maximum of $350,000, by wire transfer of same same-day funds. funds within ten (10) Business Days following the date on which the Company submits to Parent true and correct copies of reasonable documentation supporting such Third Party Expenses. (i) If (i) this Agreement is terminated by Parent pursuant to Section 9.01(c)(i), Section 9.01(c)(ii) or Section 9.01(c)(iii), (ii) this Agreement is terminated by the Company pursuant to Section 9.01(d)(iii), or (iii) Parent fails to consummate the Contemplated Transactions solely as a result of a Company Material Adverse Effect as set forth in Section 7.04 (provided, that at such time all of the other conditions precedent to the Company’s obligation to close set forth in Article VI and Article VIII have been satisfied by Parent, are capable of being satisfied by Parent or have been waived by the Company), then the Company shall reimburse Parent for all of its Third Party Expenses, up to a maximum of $350,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Parent submits to the Company true and correct copies of reasonable documentation supporting such Third Party Expenses. (j) If either Party fails to pay when due any amount payable by it under this Section 9.39.03, then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.39.03, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paidpaid plus three percent. (ek) The Parties agree that, subject to Section 9.29.02, the payment of the Company Termination Fee shall, fees and expenses set forth in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute Section 9.03 shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 9.03, it being understood that in no event shall either Parent or the Company be required to pay the amounts individual fees or damages payable pursuant to this Section 9.3 9.03 on more than one occasion and (ii) occasion. Subject to Section 9.02, following the payment of the Company Termination Fee fees and expenses set forth in this Section 9.03 by either Party, (xi) Parent such Party shall have no further liability to the Company other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (yii) neither the Company nor any of its no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub such Party or seek to obtain any recovery, judgment or damages of any kind against such Parties Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliateaffiliate, agent or other Representative representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated consummated, and (ziii) the Company all other Parties and its their respective Affiliates shall be precluded from any other remedy against Parent, Merger Sub such Party and their respective its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (ix) the agreements contained in this Section 9.3 9.03 are an integral part of the Contemplated Transactions, (iiy) without these agreements, the Parties would not enter into this Agreement Agreement, and (iiiz) any amount payable pursuant to this Section 9.3 9.03 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent Axonyx and the Company TorreyPines shall also share equally all fees and expenses expenses, other than attorneys’ and accountants’ fees and expenses, incurred in relation to (i) the printing and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and the Joint Proxy Statement/Prospectus (including any preliminary materials related thereto) and any amendments or supplements thereto and paid to a financial printer or (ii) obtaining approval of the SEC (it being agreed that listing of the cost of which is allocated to combined company on the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)NASDAQ Stock Market. (bi) If (i) this Agreement is terminated (A) by Axonyx or TorreyPines pursuant to Section 9.1(e) and (1) at any time before the Company Axonyx Stockholders’ Meeting an Acquisition Proposal with respect to Axonyx shall have been publicly announced, disclosed or otherwise communicated to Axonyx’s Board of Directors and (2) within 12 months after the date of termination of this Agreement, Axonyx enters into a definitive agreement with respect to an Acquisition Transaction or consummates an Acquisition Transaction, or (B) by TorreyPines pursuant to Section 9.1(f), in either case, without duplication, Axonyx shall pay to TorreyPines, within five Business Days after termination, a nonrefundable fee in an amount equal to $2,000,000, less any amount paid to TorreyPines pursuant to Section 9.3(c). (ii) If this Agreement is terminated (A) by Axonyx or TorreyPines pursuant to Section 9.1(d) and (1) at any time before the TorreyPines Stockholders’ Meeting an Acquisition Proposal with respect to Parent TorreyPines shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent TorreyPines’ Board after the date of this Agreement but prior to the termination of this Agreement Directors and (iii2) within twelve 12 months after the date of such terminationtermination of this Agreement, Parent TorreyPines enters into a definitive agreement for a Subsequent with respect to an Acquisition Transaction in respect of the or consummates an Acquisition Proposal referred Transaction, or (B) by Axonyx pursuant to in clause (iiSection 9.1(g), then Parent in either case, without duplication, TorreyPines shall pay to the Company Axonyx, within five Business Days after termination, a nonrefundable fee in an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction2,000,000, less any amount paid to Axonyx pursuant to Section 9.3(d). (c) If this Agreement is terminated (i) by Parent Axonyx pursuant to Section 9.1(j) or (ii) by Axonyx or TorreyPines pursuant to Section 9.1(d) and at any time before the TorreyPines Stockholders’ Meeting an Acquisition Proposal with respect to TorreyPines shall have been publicly announced, disclosed or otherwise communicated to TorreyPines’ Board of Directors, TorreyPines shall pay to Axonyx an amount equal to the lesser of (i) $1,000,000 and (ii) all Expenses of Axonyx. Any payment required to be made pursuant to this Section 9.3(c) shall be made to Axonyx not later than five Business Days after delivery by Axonyx to TorreyPines of a demand for payment and an itemization setting forth in reasonable detail all Expenses of Axonyx. (d) If this Agreement is terminated (1) by TorreyPines pursuant to Section 9.1(k), Parent (l) or (m), or (2) by Axonyx or TorreyPines pursuant to Section 9.1(e) and at any time before the Axonyx Stockholders’ Meeting an Acquisition Proposal with respect to Axonyx shall have been publicly announced, disclosed or otherwise communicated to Axonyx’s Board of Directors, Axonyx shall pay to TorreyPines an amount equal to the Company within two lesser of (i) $1,000,000 and (ii) all Expenses of TorreyPines. Any payment required to be made pursuant to this Section 9.3(d) shall be made to TorreyPines not later than five Business Days after delivery by TorreyPines to Axonyx of such termination the Company Termination Feea demand for payment and an itemization setting forth in reasonable detail all Expenses of TorreyPines. (de) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent either Party fails to pay when due any amount payable by it such Party under this Section 9.39.3(b), (c) or (d), then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.4, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated by this Agreement shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses). (b) If (i) this Agreement is terminated by MergerCo pursuant to Section 8.1(e), or (ii) this Agreement is terminated by the Company pursuant to Section 9.1(f8.1(f), then, in either such case, the Company shall pay to MergerCo in cash at the times specified herein (iiA) an Acquisition Proposal with respect a nonrefundable fee in the amount of $625,000 (the "TERMINATION FEE") and (B) reimbursements for all reasonable out-of-pocket expenses and fees (including fees and expenses payable to Parent shall have been publicly announced all banks and other financial institutions, and their respective Agents and counsel, and all fees and expenses of counsel, accountants, financial printers, experts and consultants to MergerCo and its affiliates (including W.R. Xxxxxxxxx + Xo., LLC) and all fees and expenses payable to any Governmental Body), whether incurred prior to or disclosed or otherwise communicated to Parent or the Parent Board after the date of hereof, in connection with this Agreement, the Merger, the transactions contemplated by this Agreement but prior or any actual or proposed financing (whether in the form of equity or debt) in connection with any such transaction ("TRANSACTION EXPENSES"). If (1) this Agreement is terminated by the Company or MergerCo pursuant to the Section 8.1(b) (excluding a termination of this Agreement and (iii) within twelve months after following a refusal by MergerCo to close solely by virtue of a failure to satisfy the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction condition to Closing set forth in respect of the Acquisition Proposal referred to in clause (iiSection 6.6), then Parent 8.1(c) or 8.1(d) or (2) this Agreement is terminated by MergerCo pursuant to Section 8.1(g), then, in any such case, the Company shall pay to MergerCo in cash at the times specified herein reimbursements for its Transaction Expenses. In the case of termination of this Agreement by MergerCo pursuant to Section 8.1(e), the Termination Fee shall be paid by the Company an amount equal within 48 two (2) business days after such termination. In the case of termination of this Agreement by the Company pursuant to $1,950,000 (Section 8.1(f), the “Termination Fee shall be paid by the Company Termination Fee”) within two Business Days of consummation of prior to such Subsequent Transaction. (c) termination. If this Agreement is terminated by Parent the Company or MergerCo pursuant to Section 9.1(k)8.1(d) and at or prior to the time of such termination an Acquisition Proposal shall have been disclosed, Parent announced, commenced, submitted or made (and shall pay not have been publicly, absolutely and unconditionally withdrawn and abandoned prior to the Company Shareholders' Meeting) (a "PENDING PROPOSAL"), in the event of the closing, completion or consummation within two Business Days one year after the date of such termination of this Agreement of an Acquisition Transaction relating to a Pending Proposal (regardless of any amendments, modifications or alterations that occur after the Company Termination Fee. termination of this Agreement), a fee of $1,250,000 (dthe "TOTAL FEE") Any Company Termination Fee due under this Section 9.3 shall be paid by the Company to MergerCo immediately after such closing, completion or consummation. In addition to the other amounts payable under this Section 8.4(b), if this Agreement is terminated by MergerCo pursuant to Section 8.1(e) or by the Company pursuant to Section 8.1(f), in the event of the closing, completion or consummation within one year after the date of termination of this Agreement of an Acquisition Transaction relating to a Pending Proposal (regardless of any amendments, modifications or alterations that occur after the termination of this Agreement), an additional fee of $625,000 (the "TOPPING FEE") shall be paid by the Company to MergerCo immediately after such closing, completion or consummation. Reimbursements for Transaction Expenses (which may occur on one or more occasions) shall be paid within two (2) business days after delivery to the Company of a written request therefor, including reasonable evidence of the expenses incurred. The Termination Fee, Topping Fee, Total Fee and reimbursements for Transaction Expenses shall be paid by the wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger Exchange is consummated; provided, howeverfurther, that Parent and the Company AMMA shall also share equally pay for all fees and expenses incurred by engagement of any Exchange Agent and in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Registration Proxy Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid thereto. (i) If this Agreement is terminated by AMMA or SCWorx pursuant to a financial printer Section 9.1(f) and, at any time before the AMMA Stockholders’ Meeting, an Acquisition Proposal with respect to AMMA has been publicly announced, disclosed or the SEC (it being agreed that the cost of which is allocated otherwise communicated to the Company AMMA Board of Directors, then AMMA shall pay to SCWorx, within 10 Business Days after termination, a nonrefundable fee in an amount equal to $75,000 (the “SCWorx Termination Fee”), which such SCWorx Termination Fee shall be payable in cash, in addition to any amount payable to SCWorx pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred Section 9.3(b) or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction ExpensesSection 9.3(c). (bii) If (iA) this Agreement is terminated by the Company AMMA pursuant to Section 9.1(f9.1(d) or Section 9.1(g), (iiB) at any time before obtaining the Required SCWorx Stockholder Vote an Acquisition Proposal with respect to Parent shall have SCWorx has been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent SCWorx Board after of Directors, and (C) in the date of event this Agreement but prior to the termination of this Agreement and (iii) is terminated pursuant Section 9.1(d), within twelve 12 months after the date of such termination, Parent SCWorx enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent SCWorx shall pay to AMMA, within 10 Business Days after termination (or, if applicable, upon the Company earlier of such entry into a definitive agreement with respect to a Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,950,000 75,000 (the “Company AMMA Termination Fee”), which such AMMA Termination Fee may be payable in cash, in addition to any amount payable to AMMA pursuant to Section 9.3(c) within two Business Days of consummation of such Subsequent Transactionor Section 9.3(d). (ci) If this Agreement is terminated by Parent SCWorx pursuant to Section 9.1(k9.1( f) or Section 9.1(h), Parent or (ii) in the event of a failure of SCWorx to consummate the transactions to be consummated at the Closing solely as a result of a AMMA Material Adverse Effect as set forth in Section 8.3 (provided, that at such time all of the other conditions precedent to AMMA’s obligation to close set forth in Article 6 and Article 7 of this Agreement have been satisfied by SCWorx, are capable of being satisfied by SCWorx or have been waived by AMMA), then AMMA shall pay reimburse SCWorx for all reasonable fees and expenses incurred by SCWorx in connection with this Agreement and the transactions contemplated hereby, including: (A) all fees and expenses incurred in connection with the preparation, printing and filing, as applicable, of the Proxy Statement (including any preliminary materials related thereto and all amendments and supplements thereto, as well as any financial statements and schedules thereto), excluding legal fees and expenses; and (B) all fees and expenses incurred in connection with the preparation and filing under any filing requirement of any Governmental Body applicable to this Agreement and the Company transactions contemplated hereby; provided, however, the fees and expenses for clauses (A) and (B) above (collectively referred to as the “Third-Party Expenses”) shall be capped at a maximum of $50,000 for such Third-Party Expenses; plus (C) reimbursement of all fees and expenses of SCWorx’s legal counsel in connection with preparation of the Proxy Statement (“Proxy Statement Expenses”). Such payment shall be made by wire transfer of same-day funds within two 10 Business Days following the date on which SCWorx submits to AMMA true and correct copies of reasonable documentation supporting such termination Third-Party Expenses and Proxy Statement Expenses. (c) (i) If this Agreement is terminated by AMMA pursuant to Section 9.1(d), Section 9.1(g), or Section 9.1(i), or (ii) in the Company Termination Feeevent of a failure of AMMA to consummate the transactions to be consummated at the Closing solely as a result of a SCWorx Material Adverse Effect as set forth in Section 7.3 (provided, that at such time all of the other conditions precedent to SCWorx’s obligation to close set forth in Article 6 and Article 8 of this Agreement have been satisfied by AMMA, are capable of being satisfied by AMMA or have been waived by SCWorx), then SCWorx shall reimburse AMMA for all Third-Party Expenses incurred by AMMA up to a maximum of $50,000, plus reimbursement of all fees and expenses of AMMA’s legal counsel in connection with preparation of the Proxy Statement by wire transfer of same-day funds within 10 Business Days following the date on which AMMA submits to SCWorx true and correct copies of reasonable documentation supporting such Third-Party Expenses and Proxy Statement Expenses. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent either Party fails to pay when due any amount payable by it such Party under this Section 9.39.3(b), Section 9.3(c), or Section 9.3(d), then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.38.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as (as published in The the Wall Street Journal or any successor theretoJournal)) in effect on the date such overdue amount was originally required to be paid.. 70 (e) The Parties agree thatthat the payment of the fees and expenses set forth in this Section 9.3, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 9.3, it being understood that in no event shall Parent either AMMA or SCWorx be required to pay the amounts fees or damages payable pursuant to this Section 9.3 on more than one occasion and (ii) following occasion. Subject to Section 9.2, the payment of the Company Termination Fee (x) Parent shall have no further liability to fees and expenses set forth in this Section 9.3, and the Company in connection with or arising out provisions of this Agreement or the termination thereofSection 10.10, any breach of this Agreement by Parent giving rise to such termination, or the failure each of the Contemplated Transactions to be consummatedParties and their respective Affiliates will not have any liability, (y) neither the Company nor any of its Affiliates shall will not be entitled to bring or maintain any other claim, action or proceeding against Parent the other, shall be precluded from any other remedy against the other, at law or Merger Sub in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against such Parties the other (or any partner, member, stockholdershareholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereofof this Agreement, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 9.3, are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 9.3, is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.117.3, all fees and expenses Transaction Costs incurred in connection with this Agreement and the Contemplated Transactions shall will be paid by the Party party incurring such expensesTransaction Costs, whether or not the Merger is consummated; provided, however, that if the Merger is consummated, such Transactions Costs of Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall will be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)Parent. (b) If In the event that either: (i) (A) this Agreement is terminated by the Company pursuant to Section 9.1(f7.1(b), 7.1(e) or 7.1(i), (iiB) at any time before such termination and before the Parent Stockholders’ Meeting an Acquisition Proposal with respect to Parent shall have been publicly announced or announced, disclosed or otherwise communicated to Parent’s Board of Directors or to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement Stockholders generally and (iiiC) within twelve nine (9) months after the date of such termination, Parent enters into a definitive agreement for with respect to a Subsequent Transaction or consummates a Subsequent Transaction; or (ii) this Agreement is terminated by the Company pursuant to Section 7.1(f); then Parent shall, subject to the terms of Section 7.3(d), pay to Company or its designee(s) a nonrefundable fee in respect an amount equal to $1,800,000 (the “Parent Termination Fee”) by wire transfer of same-day funds (1) in the case of a payment required by clause (i) above, on the earlier of the Acquisition Proposal date of entry into a definitive agreement or the date of consummation referred to in clause (i)(C) and (2) in the case of a payment required by clause (ii) above, within two (2) Business Days of the date of termination of this Agreement. (c) In the event that either: (i) (A) this Agreement is terminated pursuant to Section 7.1(b), then 7.1(d) or 7.1(h), (B) at any time before such termination and before the earlier of the Parent shall pay Stockholders’ Meeting or the delivery of the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company’s Board of Directors or to Company Stockholders generally and (C) within nine (9) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction; or (ii) this Agreement is terminated by the Parent pursuant to Section 7.1(g); then the Company shall, subject to the terms of Section 7.3(f), pay to Company or its designee(s) a nonrefundable fee in an amount equal to $1,950,000 2,500,000 (the “Company Termination Fee”) by wire transfer of same-day funds (1) in the case of a payment required by clause (i) above, on the earlier of the date of entry into a definitive agreement or the date of consummation referred to in clause (i)(C) and (2) in the case of a payment required by clause (ii) above, within two (2) Business Days of consummation the date of such Subsequent Transactiontermination of this Agreement. (cd) If this Agreement is terminated by Company pursuant to Sections 7.1(e) or 7.1(i), or if this Agreement is terminated by Parent pursuant to Section 7.1(e) or 7.1(b) (but only if at such time the Company would have been permitted to terminate this Agreement pursuant to Section 7.1(e) or 7.1(i)), then Parent shall reimburse Company for all reasonable fees and expenses incurred by Company in connection with this Agreement and the Transactions, including without limitation (x) all fees and expenses incurred in connection with the preparation, printing and filing, as applicable, of the Form S-4 Registration Statement (including any preliminary materials related thereto and all amendments and supplements thereto, as well as any financial statements and schedules thereto) and (y) all fees and expenses incurred in connection with the preparation and filing under any filing requirement of any Governmental Authority applicable to this Agreement and the Transactions (such expenses, including (x) and (y) above, collectively, the “Third Party Expenses”), up to a maximum of $250,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Company submits to Parent true and correct copies of reasonable documentation supporting such Third Party Expenses. Notwithstanding the foregoing, if Company is entitled to reimbursement for Third Party Expenses and the Company Termination Fee, Parent’s liability shall be capped at an amount equal to the Company Termination Fee and in no event shall Parent be required to pay Company any amount in excess of the Company Termination Fee in the event of termination of this Agreement. (e) If this Agreement is terminated by Parent pursuant to Section 9.1(kSections 7.1(d) or 7.1(h), Parent shall pay to or if this Agreement is terminated by the Company within two Business Days pursuant to Section 7.1(d) or 7.1(b) (but only if at such time Parent would have been permitted to terminate this Agreement pursuant to Section 7.1(d) or 7.1(h)), then Company shall reimburse Parent for all Third Party Expenses incurred by Parent up to a maximum of such termination $250,000 (the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid “Parent Expense Reimbursement ”), by wire transfer of same same-day funds. funds within ten (10) Business Days following the date on which Parent submits to Company true and correct copies of reasonable documentation supporting such Third Party Expenses; Notwithstanding the foregoing, if Parent is entitled to the Parent Expense Reimbursement and the Parent Termination Fee, Company’s liability shall be capped at an amount equal to the Parent Termination Fee and in no event shall Company be required to pay Parent any amount in excess of the Parent Termination Fee in the event of termination of this Agreement. (f) If Parent either Party fails to pay when due any amount payable by it such Party under this Section 9.37.3(b) , (c) or (d) , then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.37.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (eg) The Parties agree thatthat the payment of the fees and expenses set forth in this Section 7.3, subject to Section 9.27.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 7.3, it being understood that in no event shall either Parent or Company be required to pay the amounts fees or damages payable pursuant to this Section 9.3 7.3 on more than one occasion and (ii) following occasion. Subject to Section 7.2, the payment of the Company Termination Fee (x) Parent fees and expenses set forth in this Section 7.3, and the provisions of Section 8.9, each of the Parties and their respective Affiliates shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereofliability, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall not be entitled to bring or maintain any other claim, action or proceeding against Parent the other, shall be precluded from any other remedy against the other, at law or Merger Sub in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against such Parties the other (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliateaffiliate, agent or other Representative representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereofof this Agreement, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Merger and the other Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 7.3 are an integral part of the Contemplated TransactionsMerger, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 7.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all All fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent Threshold and Molecular shall share equally all fees and expenses, other than attorneys’ fees and expenses, incurred in relation to the filings by the Parties under any filing requirement under the HSR Act applicable to this Agreement and the Company Contemplated Transactions (including any fees incurred in connection with Section 5.1(e)); provided, further, that Threshold and Molecular shall also share equally all fees and expenses of all Parties incurred by engagement of the Exchange Agent and in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)thereto. (b) (i)i) If (iA) this Agreement is terminated by the Company Threshold or Molecular pursuant to Section 9.1(e) or Section 9.1(f), (iiB) an at any time before the Threshold Stockholders’ Meeting a bona fide Acquisition Proposal with respect to Parent shall have Threshold has been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Threshold Board after of Directors and (C) in the date of event this Agreement but prior to the termination of this Agreement and (iii) is terminated pursuant Section 9.1(e), within twelve (12) months after the date of such termination, Parent Threshold enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent Threshold shall pay to Molecular, within 10 Business Days after termination (or, if applicable, upon the Company earlier of such entry into a definitive agreement with respect to a Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,950,000 750,000 (the “Company Molecular Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent ), in addition to any amount payable to Molecular pursuant to Section 9.1(k9.3(c) or Section 9.3(e), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.117.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall transactions contemplated by this Agreement will be paid by the Party party incurring such expenses, whether or not the Merger is consummated; consummated (provided, however, that Parent and if the Company shall also share equally all Merger is consummated, such fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall will be paid by the Company in such party out of its own cash at or on hand prior to the Closing (and shall be Company Transaction ExpensesEffective Time). (b) If Company will pay to Parent a termination fee in an amount in cash equal to (i) $1,000,000 in the event that this Agreement is terminated by the Company pursuant to Section 9.1(f7.1(d), such fee to be paid within two (2) Business Days after such termination, and (ii) an additional $1,000,000 in the event an Acquisition Proposal with respect to Company has been publicly announced, disclosed or otherwise communicated to Company’s board of directors and, within 12 months after the date of such termination, Company enters into a definitive agreement with respect to an Acquisition Transaction or consummates an Acquisition Transaction, such additional fee to be paid not later than two (2) Business days after the Acquisition Transaction is consummated. (c) Parent will pay to Company a termination fee in an amount in cash equal to (i) $1,000,000 in the event that this Agreement is terminated pursuant to Section 7.1(e), such fee to be paid within two (2) Business Days after such termination, and (ii) an additional $1,000,000 in the event an Acquisition Proposal with respect to Parent shall have has been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Board after the date Parent’s board of this Agreement but prior to the termination of this Agreement and (iii) directors and, within twelve 12 months after the date of such termination, Parent enters into a definitive agreement for a Subsequent with respect to an Acquisition Transaction in respect of or consummates an Acquisition Transaction, such additional fee to be paid not later than two (2) Business days after the Acquisition Proposal referred to in clause Transaction is consummated (ii), then d) Company shall no later than two (2) Business Days after receipt of reasonable supporting documentation evidencing such fees and expenses reimburse Parent shall pay to the Company an amount equal for all fees and expenses (up to $1,950,000 (250,000 in the “Company Termination Fee”aggregate) within two Business Days incurred by Parent and Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of consummation of such Subsequent Transaction. (c) If this Agreement and the transactions contemplated by this Agreement if this Agreement is terminated by Parent pursuant to Section 9.1(k7.1(d) or if Parent terminates this Agreement pursuant to or Section 7.1(f), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (de) Any Parent shall no later than two (2) Business Days after receipt of reasonable supporting documentation evidencing such fees and expenses reimburse Company Termination Fee due under for all fees and expenses (up to $250,000 in the aggregate) incurred by Company in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated by this Agreement if this Agreement is terminated pursuant to Section 9.3 shall be paid by wire transfer of same day funds. 7.1(e) or Company terminates this Agreement pursuant to Section 7.1(g). (f) If Parent Company fails to pay when due any amount payable by it Company under this Section 9.37.3, then Parent shall (i) Company will reimburse the Company Parent for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 7.3, and (ii) Company will pay to Parent interest on such overdue amount (for 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 Parent in full) at a rate per annum equal to the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. If Parent fails to pay when due any amount payable by Parent under this Section 7.3, then (i) Parent will reimburse Company for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Company of its rights under this Section 9.37.3, and (ii) Parent will pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.117.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall transactions contemplated by this Agreement will be paid by the Party party incurring such expenses, whether or not the Merger is consummated; consummated (provided, however, that Parent and if the Company shall also share equally all Merger is consummated, such fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall will be paid by the Company in such party out of its own cash at or on hand prior to the Closing (and shall be Company Transaction ExpensesEffective Time). (b) If Company will pay to Parent a termination fee in an amount in cash equal to (i) $1,250,000 in the event that this Agreement is terminated by the Company pursuant to Section 9.1(f7.1(d), such fee to be paid within two (2) Business Days after such termination, and (ii) an additional $250,000 in the event an Acquisition Proposal with respect to Company has been publicly announced, disclosed or otherwise communicated to Company’s board of directors and, within 12 months after the date of such termination, Company enters into a definitive agreement with respect to an Acquisition Transaction or consummates an Acquisition Transaction, such fee to be paid not later than two (2) Business days after the Acquisition Transaction is consummated. (c) Parent will pay to Company a termination fee in an amount in cash equal to (i) $1,250,000 in the event that this Agreement is terminated pursuant to Section 7.1(e), such fee to be paid within two (2) Business Days after such termination, and (ii) an additional $250,000 in the event an Acquisition Proposal with respect to Parent shall have has been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Board after the date Parent’s board of this Agreement but prior to the termination of this Agreement and (iii) directors and, within twelve 12 months after the date of such termination, Parent enters into a definitive agreement for a Subsequent with respect to an Acquisition Transaction in respect of or consummates an Acquisition Transaction, such fee to be paid not later than two (2) Business days after the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement Transaction is terminated by Parent pursuant to Section 9.1(k), Parent shall pay to the Company within two Business Days of such termination the Company Termination Feeconsummated. (d) Any In addition to the fee set forth in Section 7.3(b)(i) above, Company Termination Fee due under shall no later than two (2) Business Days after receipt of reasonable supporting documentation evidencing such fees and expenses reimburse Parent for all fees and expenses (up to $250,000 in the aggregate) incurred by Parent and Merger Sub in connection with the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated by this Agreement if this Agreement is terminated pursuant to Section 9.3 7.1(d) or if Parent terminates this Agreement pursuant to Section 7.1(f). (e) In addition to the fee set forth in Section 7.3(c)(i) above, Parent shall be paid no later than two (2) Business Days after receipt of reasonable supporting documentation evidencing such fees and expenses reimburse Company for all fees and expenses (up to $250,000 in the aggregate) incurred by wire transfer Company in connection with the authorization, preparation, negotiation, execution and performance of same day funds. this Agreement and the transactions contemplated by this Agreement if this Agreement is terminated pursuant to Section 7.1(e) or if the Company terminates this Agreement pursuant to Section 7.1(g). (f) If Parent Company fails to pay when due any amount payable by it Company under this Section 9.37.3, then Parent shall (i) Company will reimburse the Company Parent for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by Parent of its rights under this Section 7.3, and (ii) Company will pay to Parent interest on such overdue amount (for 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 Parent in full) at a rate per annum equal to the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. If Parent fails to pay when due any amount payable by Parent under this Section 7.3, then (i) Parent will reimburse Company for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by Company of its rights under this Section 9.37.3, and (ii) Parent will pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses expenses, other than attorneys’ fees, incurred in relation to connection with: (i) the filing, printing and filing with the SEC mailing of the Form S-4 Registration Statement (including any financial statements and exhibits) the Joint Proxy Statement/Prospectus and any amendments or supplements thereto thereto; and paid to a financial printer or (ii) the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred filing by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance parties hereto of its obligations any notice or other document under this Agreement shall be paid by the Company in cash at any applicable antitrust or prior to the Closing (and shall be Company Transaction Expenses)competition Legal Requirement. (b) If this Agreement is terminated: (i) by Parent pursuant to Section 8.1(f); or (ii) by Parent or the Company pursuant to Section 8.1(d), and in the case of clause “(ii)” of this sentence either: (A) (1) at or prior to the time of the termination of this Agreement a Company Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made and shall not have been withdrawn; and (2) on or prior to the first anniversary of such termination of this Agreement, either: (x) a Company Acquisition Transaction is consummated; or (y) a definitive agreement relating to a Company Acquisition Transaction is entered into by a Symyx Corporation, or (B) a Company Triggering Event shall have occurred prior to the date of termination, then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $7,500,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid as follows: (x) in the case of clause “(i)” or “(ii)(B)” of the preceding sentence, within two business days after termination of this Agreement; and (y) in the case of clause “(ii)(A)” of the preceding sentence, within two business days after the first to occur of the consummation of the Company Acquisition Transaction or the entering into by a Symyx Corporation of the definitive agreement related thereto. If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), then the Company shall pay to Parent in cash within two business days after the termination of this Agreement the amount of $1,000,000 in respect of Parent’s expenses in connection with this Agreement, which shall be credited against the fees payable pursuant to this Section 8.3(b), if any. (c) If this Agreement is terminated: (i) by the Company pursuant to Section 9.1(f8.1(g), ; or (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to by Parent or the Parent Board after Company pursuant to Section 8.1(e), and in the date case of clause “(ii)” of this Agreement but sentence either: (A) (1) at or prior to the time of the termination of this Agreement a Parent Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made and shall not have been withdrawn; and (iii2) within twelve months after on or prior to the first anniversary of such termination of this Agreement, either: (x) a Parent Acquisition Transaction is consummated; or (y) a definitive agreement relating to a Parent Acquisition Transaction is entered into by an Accelrys Corporation, or (B) a Parent Triggering Event shall have occurred prior to the date of such termination, then Parent enters shall pay to the Company, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $7,500,000 (the “Parent Termination Fee”). The Parent Termination Fee shall be paid as follows: (x) in the case of clause “(i)” or “(ii)(B)” of the preceding sentence, within two business days after termination of this Agreement; and (y) in the case of clause “(ii)(A)” of the preceding sentence, within two business days after the first to occur of the consummation of the Parent Acquisition Transaction or the entering into a by an Accelrys Corporation of the definitive agreement for a Subsequent Transaction in respect of related thereto. If this Agreement is terminated by Parent or the Acquisition Proposal referred Company pursuant to in clause (iiSection 8.1(e), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) in cash within two Business Days business days after the termination of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent the amount of $1,000,000 in respect of the Company’s expenses in connection with this Agreement, which shall be credited against the fees payable pursuant to this Section 9.1(k8.3(c), Parent shall pay to the Company within two Business Days of such termination the Company Termination Feeif any. (d) Any Company Termination Fee fee due under this Section 9.3 8.3 shall be paid by wire transfer of same day fundsimmediately available funds to an account designated in writing by the receiving party to the paying party. If Parent a party fails to pay when due any amount payable by it such party under this Section 9.38.3, then Parent shall then: (i) such party shall reimburse the Company other party for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other party of its rights under this Section 9.3, 8.3; and (ii) such party shall pay to the Company other party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on through the date such overdue amount is actually paid to the Company other party in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as published in The Wall Street Journal announced by Citibank, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and ; or (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement maximum rate permitted by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payableapplicable Legal Requirements.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), 10.3 and Section 5.11, 6.10 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent (i) Gem and the Company shall also share equally the costs and expenses incurred in relation to the filings by the Parties under any antitrust Law applicable to this Agreement and the transactions contemplated hereby, and (ii) that Gem and the Company shall share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)SEC. (b) If (i) this Agreement is terminated by Gem or the Company pursuant to Section 9.1(f10.1(e) or by the Company pursuant to Section 10.1(f), (ii) at any time after the date of this Agreement and prior to the Gem Stockholder Meeting an Acquisition Proposal with respect to Parent Gem shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Gem Board after the date of this Agreement but prior to the termination of this Agreement (and shall not have been withdrawn) and (iii) in the event this Agreement is terminated pursuant to Section 10.1(e), within twelve (12) months after the date of such termination, Parent Gem enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent Gem shall pay to the Company Company, within ten (10) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,950,000 3,000,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction). (c) If (i) this Agreement is terminated by Gem pursuant to Section 10.1(d) or Section 10.1(g), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board (and shall not have been withdrawn) and (iii) in the event this Agreement is terminated pursuant Section 10.1(d), within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then the Company shall pay to Gem, within ten (10) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $7,800,000 (the “Gem Termination Fee”). (d) If this Agreement is terminated by Parent the Company pursuant to Section 9.1(k10.1(e) or Section 10.1(f), Parent Gem shall pay to reimburse the Company within two Business Days of such termination for all reasonable out-of-pocket fees and expenses incurred by the Company Termination Fee. (d) Any Company Termination Fee due under in connection with this Section 9.3 shall be paid Agreement and the Contemplated Transactions, up to a maximum of $750,000, by wire transfer of same same-day funds. funds within ten (10) Business Days following the date on which the Company submits to Gem accurate and complete copies of reasonable documentation supporting such expenses. (e) If Parent this Agreement is terminated by Gem pursuant to Section 10.1(g) or Section 10.1(i), the Company shall reimburse Gem for all reasonable out-of-pocket fees and expenses incurred by Gem in connection with this Agreement and the Contemplated Transactions, up to a maximum of $750,000, by wire transfer of same-day funds within ten (10) Business Days following the date on which Gem submits to the Company accurate and complete copies of reasonable documentation supporting such expenses. (f) If either Party fails to pay when due any amount payable by it under this Section 9.310.3, then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.3, 10.3 and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paidpaid plus three percent. (eg) The Parties agree that, subject to Section 9.210.2, the payment of the Company Termination Fee shall, fees and expenses set forth in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute Section 10.3 shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 10.3, it being understood that in no event shall Parent either Gem or the Company be required to pay the amounts individual fees or damages payable pursuant to this Section 9.3 10.3 on more than one occasion and (ii) occasion. Subject to Section 10.2, following the payment of the Company Termination Fee fees and expenses set forth in this Section 10.3 by a Party, (xi) Parent such Party shall have no further liability to the Company other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (yii) neither the Company nor any of its no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub such Party or seek to obtain any recovery, judgment or damages of any kind against such Parties Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (ziii) the Company all other Parties and its their respective Affiliates shall be precluded from any other remedy against Parent, Merger Sub such Party and their respective its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (ix) the agreements contained in this Section 9.3 10.3 are an integral part of the Contemplated Transactions, (iiy) without these agreements, the Parties would not enter into this Agreement and (iiiz) any amount payable pursuant to this Section 9.3 10.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent the aggregate liability for all Legal Fees and the Company shall also share equally all other fees and expenses incurred in relation to the printing and filing connection with the SEC preparation of the Registration Statement by the Parties shall be borne one-half by Chardonnay and one-half by Riesling whether or not the Merger is consummated, subject to (and without limitation to) payment of any amount (including any financial statements and exhibitsthe Expense Amount) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection accordance with the Contemplated Transactions and preparing, negotiating and entering into terms of the remainder of this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)Section 9.3. (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent Riesling pursuant to Section 9.1(k9.1(e) or Section 9.1(i), Parent Chardonnay shall pay to the Company Riesling, within two three (3) Business Days after termination of such termination this Agreement, a nonrefundable fee in an amount equal to the Company Termination Feegreater of $1,500,000 and Riesling’s Expense Amount. (dii) Any Company Termination Fee due under If this Agreement is terminated by Chardonnay pursuant to Section 9.3 9.1(h), Chardonnay shall be paid pay to Riesling, prior to the effectiveness of the termination of this Agreement, a nonrefundable fee in an amount equal to the greater of $1,500,000 and Riesling’s Expense Amount. (iii) If this Agreement is terminated by wire transfer Chardonnay or Riesling pursuant to Section 9.1(d), Chardonnay shall pay to Riesling, within three (3) Business Days after termination of same day funds. this Agreement, a non-refundable fee in an amount equal to the greater of $1,500,000 and Riesling’s Expense Amount. (iv) If Parent this Agreement is terminated by Chardonnay pursuant to Section 9.1(f), Riesling shall pay a nonrefundable fee in an amount equal to the greater of $1,500,000 and Chardonnay’s Expense Amount. (v) If this Agreement is terminated by Riesling pursuant to Section 9.1(g), Chardonnay shall pay a nonrefundable fee in an amount equal to the greater of $1,500,000 and Riesling’s Expense Amount. (b) If either Chardonnay or Riesling fails to pay when due any amount payable by it such paying Party under this Section 9.39.3(a), then Parent shall (i) such paying Party shall reimburse the Company receiving Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company receiving Party of its rights under this Section 9.3, and (ii) such paying Party shall pay to the Company such receiving Party interest on such overdue amount (for 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 Company such receiving Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (ec) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood acknowledge that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactionstransactions contemplated by this Agreement and that, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payableAgreement.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is Contemplated Transactions are consummated; provided, however, that Parent and the Company and PTI shall also share equally all fees and expenses incurred in relation to (i) the printing (e.g., paid to a financial printer) and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid (ii) the filing and application fees payable to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company Nasdaq in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement Nasdaq Listing Application and the performance listing of its obligations under this Agreement shall the PTI Common Stock to be paid by issued in the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)Merger on Nasdaq. (b) If PTI shall pay to the Company via wire transfer of same-day funds, within two (2) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $2,100,000 (the “Company Termination Fee”): (i) if this Agreement is terminated by the Company pursuant to Section 9.1(f9.1(e), ; (ii) if this Agreement is terminated by PTI pursuant to Section 9.1(j); or (iii) if this Agreement is terminated by PTI or the Company pursuant to Section 9.1(d) or by the Company pursuant to Section 9.1(g) and (x) an Acquisition Proposal with respect to Parent PTI shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent PTI Board after the date of this Agreement but Directors prior to the such termination of this Agreement (and not withdrawn) and (iiiy) within twelve (12) months after the date of such termination, Parent PTI enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such that is subsequently consummated or consummates a Subsequent Transaction. (c) The Company shall pay to PTI via wire transfer of same-day funds, within two (2) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $4,380,000 (the “PTI Termination Fee”): (i) if this Agreement is terminated by PTI pursuant to Section 9.1(f); (ii) if this Agreement is terminated by the Company pursuant to Section 9.1(k); or (iii) if this Agreement is terminated by PTI pursuant to Section 9.1(h) or by PTI or the Company pursuant to Section 9.1(i) and (x) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board of Directors prior to such termination (and not withdrawn) and (y) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction that is subsequently consummated or consummates a Subsequent Transaction. (d) (i) If this Agreement is terminated by Parent the Company pursuant to Section 9.1(k9.1(d) or Section 9.1(g), Parent (ii) if this Agreement is terminated by PTI pursuant to Section 9.1(d), then PTI shall pay to reimburse the Company for all Third Party Expenses incurred by the Company, up to a maximum of $703,000 by wire transfer of same-day funds within two (2) Business Days following the date on which the Company submits to PTI true and correct copies of reasonable documentation supporting such termination Third Party Expenses. If the Company becomes entitled to receive a Company Termination Fee under this Agreement, the amount paid by PTI as expense reimbursement under this Section 9.3(d) will be credited against the Company Termination Fee. (de) Any (i) If this Agreement is terminated by PTI pursuant to Section 9.1(h) or Section 9.1(i), (ii) if this Agreement is terminated by the Company Termination Fee due under this pursuant to Section 9.3 9.1(i), then the Company shall be paid reimburse PTI for all Third Party Expenses incurred by PTI up to a maximum of $1,460,000, by wire transfer of same same-day fundsfunds within two (2) Business Days following the date on which PTI submits to the Company true and correct copies of reasonable documentation supporting such Third Party Expenses. If Parent PTI becomes entitled to receive a PTI Termination Fee under this Agreement, the amount paid by the Company as expense reimbursement under this Section 9.3(e) will be credited against the PTI Termination Fee. (f) If either Party fails to pay when due any amount payable by it such Party under this Section 9.39.3(a), (b), (c), (d) or (e), then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (eg) The Parties agree that, subject to Except for any liability or damage for fraud or Willful Breach as provided in Section 9.2, the Parties agree that the payment of the Company Termination Fee shallfees and expenses set forth in this Section 9.3, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 9.3, it being understood that in no event shall Parent either PTI or the Company be required to pay the amounts fees or damages payable pursuant to this Section 9.3 on more than one occasion and (ii) following occasion. Subject to any liability or damage for fraud or Willful Breach as provided in Section 9.2, the payment of the Company Termination Fee (x) Parent fees and expenses set forth in this Section 9.3, and the provisions of Section 10.11, each of the Parties and their respective Affiliates shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereofliability, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall not be entitled to bring or maintain any other claim, action or proceeding against Parent the other, shall be precluded from any other remedy against the other, at law or Merger Sub in equity or otherwise, and shall not seek to obtain any recovery, judgment or damages of any kind against such Parties the other (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereofof this Agreement, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company Parties in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), 9.3 and Section 5.11, 5.11 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent Nautilus and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)SEC. (b) If (i) this Agreement is terminated by Nautilus or the Company pursuant to Section 9.1(f9.1(e), (ii) at any time after the date of this Agreement and prior to the Nautilus Stockholders’ Meeting an Acquisition Proposal with respect to Parent Nautilus shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Nautilus Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve 12 months after the date of such termination, Parent Nautilus enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent Nautilus shall pay to the Company Company, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $1,950,000 2,500,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction), less any amount previously paid to the Company pursuant to Section 9.3(g), plus any amount payable to the Company pursuant to Section 9.3(i). (c) If this Agreement is terminated by Parent the Company pursuant to Section 9.1(k9.1(f), Parent then Nautilus shall pay to the Company Company, within two ten Business Days of such termination after termination, the Company Termination Fee, in addition to any amount payable to the Company pursuant to Section 9.3(i). (d) Any If (i) this Agreement is terminated by Nautilus pursuant to Section 9.1(d), (ii) at any time after the date of this Agreement and before obtaining the Required Company Stockholder Vote an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board, and (iii) within 12 months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then the Company shall pay to Nautilus, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $2,500,000 (the “Nautilus Termination Fee due under Fee”), in addition to any amount payable to Nautilus pursuant to Section 9.3(i). (e) If (i) this Agreement is terminated by Nautilus pursuant to Section 9.3 9.1(g), then the Company shall pay to Nautilus, within ten Business Days after termination, the Nautilus Termination Fee, in addition to any amount payable to Nautilus pursuant to Section 9.3(i). (f) If this Agreement is terminated by Nautilus pursuant to Section 9.1(j), then the Company shall pay to Nautilus, within ten Business Days after termination, the Nautilus Termination Fee, in addition to any amount payable to Nautilus pursuant to Section 9.3(i). (g) (i) If this Agreement is terminated by the Company pursuant to Section 9.1(h) or Section 9.1(e) or (ii) in the event of the failure of the Company to consummate the transactions to be paid contemplated at the Closing solely as a result of a Nautilus Material Adverse Effect as set forth in Section 8.5 (provided, that at such time all of the other conditions precedent to Nautilus’ obligation to close set forth in Section 6 and Section 7 have been satisfied by the Company, are capable of being satisfied by the Company or have been waived by Nautilus), then Nautilus shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by the Company in connection with this Agreement and the Contemplated Transactions (such expenses, collectively, the “Third Party Expenses”), up to a maximum of $1,000,000, by wire transfer of same same-day funds. funds within ten Business Days following the date on which the Company submits to Nautilus true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that in no event shall Nautilus be obligated to reimburse the Company for any amounts payable to financial advisors to the Company except for reasonably documented out-of-pocket expenses otherwise reimbursable by the Company to such financial advisors pursuant to the terms of the Company’s engagement letter or similar arrangement with such financial advisors. (i) If Parent this Agreement is terminated by Nautilus pursuant to Section 9.1(i) or (ii) in the event of the failure of Nautilus to consummate the transactions to be consummated at the Closing solely as a result of a Company Material Adverse Effect as set forth in Section 7.6 (provided, that at such time all of the other conditions precedent to the Company’s obligation to close set forth in Section 6 and Section 8 have been satisfied by Nautilus, are capable of being satisfied by Nautilus or have been waived by the Company), the Company shall reimburse Nautilus for all Third Party Expenses incurred by Nautilus up to a maximum of $1,000,000, by wire transfer of same-day funds within ten Business Days following the date on which Nautilus submits to the Company true and correct copies of reasonable documentation supporting such Third Party Expenses; provided, however, that in no event shall the Company be obligated to reimburse Nautilus for any amounts payable to financial advisors to Nautilus except for reasonably documented out-of-pocket expenses otherwise reimbursable by Nautilus to such financial advisors pursuant to the terms of Nautilus’ engagement letter or similar arrangement with such financial advisors. (i) If either Party fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) such Party shall reimburse the Company other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.3, and (ii) such Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally required to be paidpaid plus three percent. (ej) The Parties agree that, subject to Section 9.2, the payment of the Company Termination Fee shall, fees and expenses set forth in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute Section 9.3 shall be the sole and exclusive remedy of the Company each Party following the a termination of this AgreementAgreement under the circumstances described in this Section 9.3, it being understood that in no event shall Parent either Nautilus or the Company be required to pay the amounts individual fees or damages payable pursuant to this Section 9.3 on more than one occasion and (ii) occasion. Subject to Section 9.2, following the payment of the Company Termination Fee fees and expenses set forth in this Section 9.3 by a Party, (xi) Parent such party shall have no further liability to the Company other Party in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent the other Party giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (yii) neither the Company nor any of its no other Party or their respective Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub such Party or seek to obtain any recovery, judgment or damages of any kind against such Parties Party (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliateaffiliate, agent or other Representative representative of such PartiesParty) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (ziii) the Company all other Parties and its their respective Affiliates shall be precluded from any other remedy against Parent, Merger Sub such Party and their respective its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (ix) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (iiy) without these agreements, the Parties would not enter into this Agreement and (iiiz) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.this

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses expenses, other than attorneys’ fees, incurred in relation to connection with: (i) the filing, printing and filing with the SEC mailing of the Form S-4 Registration Statement (including any financial statements and exhibits) the Joint Proxy Statement/Prospectus and any amendments or supplements thereto thereto; and paid to a financial printer or (ii) the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred filing by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance parties hereto of its obligations any notice or other document under this Agreement shall be paid by the Company in cash at any applicable antitrust or prior to the Closing (and shall be Company Transaction Expenses)competition Legal Requirement. (b) If this Agreement is terminated: (i) this Agreement is terminated by Parent pursuant to Section 8.1(f); or (ii) by Parent or the Company pursuant to Section 9.1(f8.1(d), and in the case of clause “(ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date )” of this Agreement but sentence either: (A) (1) at or prior to the time of the termination of this Agreement a Company Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made and shall not have been withdrawn; and (iii2) within twelve months after on or prior to the first anniversary of such termination of this Agreement, either: (x) a Company Acquisition Transaction is consummated; or (y) a definitive agreement relating to a Company Acquisition Transaction is entered into by a Symyx Corporation, or (B) a Company Triggering Event shall have occurred prior to the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of then the Acquisition Proposal referred to in clause (ii), then Parent Company shall pay to Parent, in cash at the Company an time specified in the following sentence, a nonrefundable fee in the amount equal to of $1,950,000 7,500,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (d) Any . The Company Termination Fee due under this Section 9.3 shall be paid by wire transfer as follows: (x) in the case of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall clause “(i) reimburse the Company for reasonable costs and expenses )” or “(including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for the period commencing as ii)(B)” 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree thatpreceding sentence, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the within two business days after termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion ; and (iiy) following payment in the case of clause “(ii)(A)” of the preceding sentence, within two business days after the first to occur of the consummation of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement Acquisition Transaction or the termination thereof, any breach of this Agreement entering into by Parent giving rise to such termination, or the failure a Symyx Corporation of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payabledefinitive agreement related thereto.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), 9.3 and Section 5.11, 7.9 all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated hereby shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; consummated provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to (i) the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC and (it being agreed that ii) the cost filing fees of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company Parent in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior any filings made pursuant to the Closing (and shall be Company Transaction ExpensesSection 7.4(a). (b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(f9.1(b) or Section 9.1(e), (ii) at any time after the date of this Agreement and prior to such termination (in the case of termination pursuant to Section 9.1(b)) or the Parent Stockholder Meeting (in the case of a termination pursuant to Section 9.1(e)), an Acquisition Proposal with respect to Parent shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent shall pay to the Company Company, upon the earlier of such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $1,950,000 3,480,000 (the “Company Termination Fee”) within two Business Days by wire transfer of consummation of such Subsequent Transactionsame-day funds to an account designated by the Company. (c) If this Agreement is terminated (i) by the Company pursuant to Section 9.1(f) (or by Parent in circumstances in which the Company has the right to terminate this Agreement pursuant Section 9.1(f)) or (ii) by Parent pursuant to Section 9.1(k9.1(j), then Parent shall pay to the Company the Company Termination Fee, by wire transfer of same day funds to an account designated by the Company, (x) in the case of a termination by Parent referred to in the foregoing clause (i) or (ii), prior (and as a condition) to such termination or (y) in the case of a termination by the Company described in the foregoing clause (i), within two (2) Business Days after such termination. (d) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b) or Section 9.1(d), (ii) at any time after the date of this Agreement and prior to such termination (in the case of termination pursuant to Section 9.1(b)) or obtaining the Company Stockholder Approval (in the case of a termination pursuant to Section 9.1(d)), an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board and (iii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then the Company shall pay to Parent, upon the earlier of such entry into a definitive agreement and/or consummation of a Subsequent Transaction, a nonrefundable fee in an amount equal to $10,410,000 (the “Parent Termination Fee”) by wire transfer of same-day funds to an account designated by Parent. (e) If this Agreement is terminated (i) by Parent pursuant to Section 9.1(g) (or by the Company in circumstances in which Parent has the right to terminate this Agreement pursuant Section 9.1(g)) or (ii) by the Company pursuant to Section 9.1(k) then the Company shall pay to Parent the Parent Termination Fee, by wire transfer of same day funds to an account designated by Parent, (x) in the case of a termination by the Company referred to in the foregoing clause (i) or (ii), prior (and as a condition) to such termination or (y) in the case of a termination by Parent described in the foregoing clause (i), within two (2) Business Days after such termination. (f) If this Agreement is terminated by the Company or Parent pursuant to Section 9.1(e) or by the Company pursuant to Section 9.1(h), Parent shall reimburse the Company for all reasonable out-of-pocket expenses incurred by the Company in connection with this Agreement and the transactions contemplated hereby, up to a maximum of $580,000, by wire transfer of same-day funds to an account designated by the Company, within two (2) Business Days following the date on which the Company submits to Parent true and correct copies of reasonable documentation supporting such expenses. If the Company becomes entitled to receive the Company Termination Fee under this Agreement, any amount paid by Parent under this Section 9.3(f) shall be credited against the Company Termination Fee. (dg) Any If this Agreement is terminated by Parent or the Company Termination Fee due under pursuant to Section 9.1(d) or by Parent pursuant to Section 9.1(i), the Company shall reimburse Parent for all reasonable out-of-pocket expenses incurred by Parent in connection with this Section 9.3 shall be paid Agreement and the transactions contemplated hereby, up to a maximum of $580,000, by wire transfer of same same-day fundsfunds to an account designated by Parent, within two (2) Business Days following the date on which Parent submits to the Company true and correct copies of reasonable documentation supporting such expenses. If Parent fails becomes entitled to pay when due receive the Parent Termination Fee under this Agreement, any amount payable paid by it the Company under this Section 9.3, then Parent shall (i9.3(g) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding credited against the Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payableTermination Fee.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.117.3, all fees costs and expenses incurred in connection with this Agreement and the Contemplated Transactions Transaction shall be paid by the Party party incurring such costs and expenses, whether or not the Merger is consummated; provided. (b) The Company agrees to pay Parent a fee equal to $250,000 (the "Termination Fee"), howevertogether with the Expenses of Parent (not to exceed $150,000), that if (i) Parent terminates this Agreement pursuant to Sections 7.1(e), (h) or (j), or (ii) the Company terminates this Agreement pursuant to Section 7.1 (g). The Parent agrees to pay the Company the Termination Fee, together with the Expenses of the Company (not to exceed $150,000), if the Company terminates this Agreement pursuant to Section 7.1(d). The Termination Fee and Expenses required to be paid pursuant to Section 7.3(b) shall be paid not later than five (5) Business Days after the termination of this Agreement. (c) If (i) Parent terminates this Agreement pursuant to Section 7.1(i), or (ii) Parent or the Company terminate this Agreement pursuant to Section 7.1(f), the Company agrees to pay Parent the Expenses of Parent (not to exceed $50,000), such amount to be paid not later than five (5) Business Days after the termination of this Agreement. In addition, if the Company executes a definitive agreement with respect to an Acquisition Transaction with any Person within 12 months of the termination of this Agreement pursuant to Sections 7.1(f) or (i), upon the closing of such Acquisition Transaction, the Company shall also share equally all fees and expenses incurred in relation pay to Parent an amount (the "Additional Fee") equal to the printing and filing with lesser of (A) the SEC sum of the Registration Statement Termination Fee and the Expenses of Parent (including not to exceed $150,000, net of any financial statements expenses paid pursuant to the first sentence of this Section 7.3(c)) (collectively, the "Termination Payment"), and exhibits(B) and any amendments or supplements thereto and paid to the product of the Termination Payment, multiplied by a financial printer or fraction, the SEC (it being agreed that the cost numerator of which is allocated to the Company pursuant to Aggregate Acquisition Consideration, and the foregoing shall be denominator of which is the Aggregate Merger Consideration. For purposes of this Section 7.3(c), "Aggregate Acquisition Consideration" means the aggregate consideration paid by a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company third party in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement an Acquisition Transaction. Such Additional Fee shall be paid by the Company in cash at or prior to not later than five (5) Business Days after the Closing (and closing of such Acquisition Transaction. If the Aggregate Acquisition Consideration includes any property other than cash, the Aggregate Acquisition Consideration shall be Company Transaction Expenses). (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date sum of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent pursuant to Section 9.1(k), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained fixed cash amount, if any, included in this Section 9.3 are an integral part of the Contemplated Transactions, Aggregate Acquisition Consideration plus (ii) without these agreementsthe fair market value of such other property (which, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payablecase of publicly traded securities, shall equal to the average closing price for the ten trading days commencing on the 12th trading day immediately preceding the closing of the Acquisition Transaction).

Expenses; Termination Fees. (a) Except as set forth in Section 5.15 and this Section 9.3, Section 5.8(d), and Section 5.117.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses). (b) If The Company agrees to pay Parent an amount equal to $2,500,000 (the ”Termination Fee”) if this Agreement is terminated: (i) this Agreement is terminated by Parent pursuant to Section 7.1(e); or (ii) (A)(1) by Parent or the Company pursuant to Section 9.1(f7.1(b) or Section 7.1(d) or (2) by Parent pursuant to Section 7.1(f) or Section 7.1(g), (iiB) an following the execution of this Agreement and on or before the date of any such termination a Company Acquisition Proposal with respect to Parent shall have been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement Company Board, and (iiiC) within twelve 12 months after the date of such termination, Parent the Company enters into a definitive agreement for with respect to a Subsequent Company Acquisition Transaction in respect (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Acquisition Proposal) or consummates a Company Acquisition Transaction. For purposes of this Section 7.3(b)(ii), (1) the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 8.17, except that the references to “15% or more” shall be deemed to be references to “50% or more;” and (2) any Company Acquisition Proposal referred to in clause (ii), then Parent shall pay made prior to the execution of this Agreement will be deemed to have been made following the execution of this Agreement if the Company an amount equal to $1,950,000 (the “Company Termination Fee”breaches its obligations under Section 5.4(a) within two Business Days of consummation of such Subsequent Transactionwith respect thereto. (c) If this Agreement is terminated by Parent Any Termination Fee required to be paid (i) pursuant to Section 9.1(k), Parent 7.3(b)(i) shall pay to the Company be paid within two Business Days of after termination by Parent, and (ii) pursuant to Section 7.3(b)(ii) shall be paid within two Business Days after the event giving rise to such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 payment, and, in each case, shall be paid by wire transfer of same day fundsimmediately available funds to an account designated in writing by the Parent. (d) Without prejudice to the payment of any Termination Fee, in the event that this Agreement is terminated by either (i) the Company or Parent pursuant to Section 7.1(d) or (ii) Parent pursuant to Section 7.1(f), and, in the case of either clause (i) or (ii), the Termination Fee is not otherwise payable by the Company at the time of such termination pursuant to Section 7.3(b)(ii), the Company shall pay to Parent an amount not to exceed $1,250,000 in respect of the expenses of Parent incurred in connection with this Agreement and the Contemplated Transactions, within two Business Days after such termination by wire transfer of immediately available funds to an account designated in writing by Parent (such amount, an “Expense Reimbursement”). In the event that the Company shall make an Expense Reimbursement to Parent pursuant to this Section 7.3(d), such amount paid shall be deducted from the amount of any Termination Fee paid or payable by the Company pursuant to Section 7.3(b). (e) If Parent a Party fails to pay when due any amount payable by it under this Section 9.37.3, then Parent shall (i) the non-paying Party shall reimburse the Company other Party for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other Party of its rights under this Section 9.37.3, and (ii) the non-paying Party shall pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor theretoJournal) in effect on the date such overdue amount was originally required to be paid. (ef) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood acknowledge that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 7.3 are an integral part of the Contemplated Transactionstransactions contemplated by this Agreement and that, (ii) without these agreements, the Parties would not enter into this Agreement Agreement. Payment of the fees and (iii) any amount payable expenses described in this Section 7.3 shall not be in lieu of liability pursuant to Section 7.2(b). In no event shall either Party be obligated to pay a Termination Fee or Expense Reimbursement pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable7.3 on more than one occasion.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11‎8.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses). (b) If this Agreement is terminated: (i) this Agreement is terminated (A) by Parent pursuant to Section ‎8.1(e) or (B) by the Company pursuant to Section 9.1(f‎8.1(i), ; or (ii) by Parent or the Company pursuant to Section ‎8.1(d) or by Parent pursuant to Section ‎8.1(g), and in the case of clause (ii) of this sentence: (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal with respect to Parent a Company Entity shall have been publicly announced disclosed, announced, commenced, submitted or disclosed made; and (B) on or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the first anniversary of such termination of this Agreement and Agreement, either: (iii1) within twelve months after the date of such termination, Parent enters into an Acquisition Transaction with respect to a Company Entity is consummated; or (2) a definitive agreement for relating to an Acquisition Transaction with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)Company Entity is entered into by a Company Entity, then Parent the Company shall pay to Parent, in cash at the Company an time specified in the following sentence, a nonrefundable fee in the amount equal to of the sum of $1,950,000 100,000 in cash (the “Company Termination Fee”). The Company Termination Fee shall be paid as follows: (x) in the case of clause (i)(A) of the preceding sentence, within two Business Days business days after the termination of this Agreement and in the case of clause (i)(B) of the preceding sentence, simultaneously with the termination of this Agreement; and (y) in the case of clause (ii) of the preceding sentence, within two business days after the first to occur of the consummation of such Subsequent the Acquisition Transaction or the entering into by a Company Entity of the definitive agreement to effectuate an Acquisition Transaction. (c) If this Agreement is terminated terminated: (i) by Parent the Company pursuant to Section 9.1(k‎8.1(f); or (ii) by the Company pursuant to Section ‎8.1(h), and in the case of clause (ii) of this sentence: (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal with respect to a Parent Entity shall have been publicly disclosed or announced; and (B) on or prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to a Parent Entity is consummated; or (2) a definitive agreement relating to an Acquisition Transaction with respect to a Parent Entity is entered into by a Parent Entity, then Parent shall pay to the Company Company, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of the sum of $100,000 in cash (the “Parent Termination Fee”). The Parent Termination Fee shall be paid as follows: (x) in the case of clause (i)(A) of the preceding sentence, within two Business Days business days after the termination of such this Agreement and in the case of clause (i)(B) of the preceding sentence, simultaneously with the termination of this Agreement; and (y) in the Company Termination Feecase of clause (ii) of the preceding sentence, within two business days after the first to occur of the consummation of the Acquisition Transaction or the entering into by a Parent Entity of the definitive agreement to effectuate an Acquisition Transaction. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent a party fails to pay when due any amount payable by it such party under this Section 9.3‎8.3, then Parent shall then: (i) such party shall reimburse the Company other party for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other party of its rights under this Section 9.3, ‎8.3; and (ii) such party shall pay to the Company other party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on through the date such overdue amount is actually paid to the Company other party in full) at a rate per annum equal to the “prime rate” lower of: (as published in The Wall Street Journal i) 18% per annum; or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement maximum rate permitted by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payableapplicable Legal Requirements.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), Each Party hereto shall bear and Section 5.11, pay all fees costs and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions transactions contemplated by this Agreement, including fees and preparing, negotiating and entering into this Agreement and the performance expenses of its obligations under own financial consultants, investment bankers, accountants and counsel, provided that notwithstanding anything to the contrary contained in this Agreement Agreement, neither Home Bancorp or the MHC nor the Company shall be paid by the Company in cash at released from any liabilities or prior to the Closing (and shall be Company Transaction Expenses)damages arising out of its willful breach of any provision of this Agreement. (b) If In recognition of the efforts, expenses and other opportunities foregone by Home Bancorp and the MHC while structuring and pursuing the Merger, the Parties hereto agree that the Company shall pay to Home Bancorp a termination fee of $700,000 (the “Termination Fee”) in the manner set forth below if: (i) this Agreement is terminated by Home Bancorp pursuant to Section 7.1(f) or (g); (ii) this Agreement is terminated by (A) Home Bancorp pursuant to Section 7.1(b), (B) by either Home Bancorp or the Company pursuant to Section 7.1(e), or (C) by either Home Bancorp or the Company pursuant to Section 7.1(d)(i) (other than by reason of any breach by Home Bancorp or the Company, respectively), and in the case of any termination pursuant to clause (A), (B) or (C) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of the Company or the Board of Directors of the Company (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of clause (C), or the date of termination of this Agreement, in the case of clause (A) or (B); or (iii) this Agreement is terminated by the Company pursuant to Section 9.1(f7.1(h), (ii. In the event the Termination Fee shall become payable pursuant to Section 8.1(b)(i) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent (x) the Company shall pay to the Company Home Bancorp an amount equal to $1,950,000 250,000 on the first Business Day following termination of this Agreement, and (y) if within 24 months after such termination, the “Company or a Company Subsidiary enters into any agreement with respect to, or consummates, any Acquisition Proposal, the Company shall pay to Home Bancorp the Termination Fee”Fee (net of any payment made pursuant to clause (x) within two Business Days above) on the date of execution of such agreement or consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent the Acquisition Proposal. In the event the Termination Fee shall become payable pursuant to Section 9.1(k8.1(b)(iii), Parent the Company shall pay to Home Bancorp the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company entire Termination Fee due under on the first Business Day following the date of termination of this Agreement. Any amount that becomes payable pursuant to this Section 9.3 8.1(b) shall be paid by wire transfer of same day fundsimmediately available funds to an account designated by Home Bancorp. (c) The Company, Home Bancorp and the MHC agree that the agreement contained in paragraph (b) of this Section 8.1 is an integral part of the transactions contemplated by this Agreement, that without such agreement Home Bancorp and the MHC would not have entered into this Agreement and that such amounts do not constitute a penalty or liquidated damages in the event of a breach of this Agreement by either the Company or Home Bancorp. If Parent the Company fails to pay when Home Bancorp hereto the amounts due any amount payable by it thereto under this Section 9.3paragraph (b) above within the time periods specified therein, then Parent shall (i) reimburse the Company for reasonable shall pay the costs and expenses (including reasonable legal fees and disbursements of counselexpenses) incurred by it Home Bancorp in connection with any action in which Home Bancorp prevails, including the collection filing of any lawsuit, taken to collect payment of such overdue amount and the enforcement by the Company of its rights under this Section 9.3amounts, and (ii) pay to the Company together with interest on the amount of any such overdue amount (for unpaid amounts at the prime lending rate prevailing during such 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect Journal, calculated on a daily basis from the date such overdue amount was originally amounts were required to be paidpaid until the date of actual payment. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions transactions contemplated by this Agreement shall be paid by the Party incurring such expensesin accordance with Section 11.14, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally make a nonrefundable cash payment to the Purchaser by wire transfer, in an amount equal to the aggregate amount of all reasonable documented out-of-pocket fees and expenses incurred in relation to the printing (including all reasonable attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) paid or payable by or on behalf of the Purchaser in connection with the SEC preparation and negotiation of this Agreement and otherwise in connection with the Registration Statement Merger (including any financial statements and exhibitsthe “Expense Reimbursement”) and any amendments if this Agreement is terminated by the Purchaser or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction ExpenseSection 8.1(f). It is understood Notwithstanding anything to the contrary herein, the Expense Reimbursement shall not exceed $1,500,000 (and agreed that all fees at no time shall the aggregate amount of any Expense Reimbursement and expenses incurred or to be incurred Termination Fee paid by the Company in connection with exceed $5,000,000). Any Expense Reimbursement required to be made (A) as the Contemplated Transactions and preparing, negotiating and entering into result of a termination of this Agreement and by the performance of its obligations under this Agreement Company pursuant to Section 8.1(f) shall be paid by the Company in cash at or prior to the Closing time of such termination; and (and B) as the result of termination of this Agreement by Purchaser pursuant to Section 8.1(f) shall be paid by the Company Transaction Expenses)within two Business Days after such termination. (b) If The Company agrees to pay Purchaser (or its designees) by wire transfer an amount equal to $5,000,000, less the amount of any Expense Reimbursement previously paid by the Company to the Purchaser (the “Termination Fee”), if this Agreement is terminated: (i) by the Purchaser pursuant to Section 8.1(g)(i) or (ii); (ii) by the Purchaser or the Company pursuant to Section 8.1(b) or by the Purchaser pursuant to Section 8.1(g)(iii) and, in either case, (A) on or before the date of any such termination a solicited or unsolicited Acquisition Proposal shall have been announced or disclosed to the Company Board and (B) a definitive agreement is entered into by the Company with respect to such an Acquisition Transaction or such an Acquisition Transaction is consummated within 12 months of such termination of this Agreement; (iii) by the Purchaser or the Company pursuant to Section 8.1(f) and (x) on or before the 20th day after the date of the mailing of the consent solicitation to the Stockholders pursuant to Section 6.9 a solicited or unsolicited Acquisition Proposal shall have been announced or disclosed to the Company Board, and (y) a definitive Agreement is terminated entered into by the Company with respect to such an Alternative Transaction or such an Alternative Transaction is consummated within 12 months of such termination of this Agreement; or (iv) by the Company pursuant to Section 9.1(f), (ii8.1(f) an Acquisition Proposal with respect at any time during which the Agreement was otherwise terminable by the Purchaser in a circumstance in which the Purchaser would be entitled to Parent shall have been publicly announced payment of the Termination Fee pursuant to Section 8.3(b)(i) or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent Any Termination Fee required to be paid (i) pursuant to Section 9.1(k), Parent 8.3(b)(i) shall pay to the Company be paid within two Business Days of after termination by the Purchaser and (ii) pursuant to Section 8.3(b)(ii), (iii) or (iv) shall be paid within two Business Days after the final event giving rise to such termination the Company Termination Feepayment occurs. (d) Any If the Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.38.3, then Parent shall (i) reimburse the Company shall reimburse Purchaser for all reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company Purchaser of its rights under this Section 9.38.3, and (ii) the Company shall pay to the Company Purchaser interest on such overdue amount (for 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 Company Purchaser in full) at a rate per annum equal to 3% over the “prime rate” (as published in announced by The Wall Street Journal or any successor theretoJournal) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood acknowledge that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 8.3 are an integral part of the Contemplated Transactionstransactions contemplated by this Agreement and that, (ii) without these agreements, the Parties would not enter into this Agreement Agreement. Payment of the fees and (iii) any amount payable expenses described in this Section 8.3 shall not be in lieu of liability pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable8.2(b).

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.118.3, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent and the Company shall also share equally all fees and expenses expenses, other than attorneys’ fees, incurred in relation to connection with: (i) the filing, printing and filing with the SEC mailing of the Form S-4 Registration Statement (including any financial statements and exhibits) the Joint Proxy Statement/Prospectus and any amendments or supplements thereto thereto; and paid to a financial printer or (ii) the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred filing by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance parties hereto of its obligations any notice or other document under this Agreement shall be paid by the Company in cash at any applicable antitrust or prior to the Closing (and shall be Company Transaction Expenses)competition Legal Requirement. (b) If this Agreement is terminated: (i) by Parent pursuant to Section 8.1(f); or (ii) by Parent or the Company pursuant to Section 8.1(d), and in the case of clause “(ii)” of this sentence: (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal with respect to an Avanex Corporation shall have been disclosed, announced, commenced, submitted or made and shall not have been withdrawn; and (B) on or prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to an Avanex Corporation is consummated; or (2) a definitive agreement relating to an Acquisition Transaction with respect to an Avanex Corporation is entered into by an Avanex Corporation, then the Company shall pay to Parent, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $1,640,000 (the “Company Termination Fee”). The Company Termination Fee shall be paid as follows: (x) in the case of clause “(i)” of the preceding sentence, within two business days after termination of this Agreement; and (y) in the case of clause “(ii)” of the preceding sentence, within two business days after the first to occur of the consummation of the Acquisition Transaction or the entering into by an Avanex Corporation of the definitive agreement. If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), then the Company shall pay to Parent in cash within two business days after the termination of this Agreement the amount of $1,000,000 in respect of Parent’s expenses in connection with this Agreement, which shall be credited against the fees payable pursuant to this Section 8.3(b), if any. (c) If this Agreement is terminated: (i) by the Company pursuant to Section 9.1(f8.1(g), ; or (ii) by Parent or the Company pursuant to Section 8.1(e), and in the case of clause “(ii)” of this sentence: (A) at or prior to the time of the termination of this Agreement an Acquisition Proposal with respect to Parent a Bookham Corporation shall have been publicly announced or disclosed or otherwise communicated announced, and shall not have been withdrawn; and (B) on or prior to the first anniversary of such termination of this Agreement, either: (1) an Acquisition Transaction with respect to a Bookham Corporation is consummated; or (2) a definitive agreement relating to an Acquisition Transaction with respect to a Bookham Corporation is entered into by a Bookham Corporation, then Parent shall pay to the Company, in cash at the time specified in the following sentence, a nonrefundable fee in the amount of $1,640,000 (the “Parent Termination Fee”). The Parent Termination Fee shall be paid as follows: (x) in the case of clause “(i)” of the preceding sentence, within two business days after termination of this Agreement; and (y) in the case of clause “(ii)” of the preceding sentence, within two business days after the first to occur of the consummation of the Acquisition Transaction or the entering into by a Bookham Corporation of the definitive agreement. If this Agreement is terminated by Parent or the Parent Board after the date of this Agreement but prior Company pursuant to the termination of this Agreement and (iii) within twelve months after the date of such termination, Parent enters into a definitive agreement for a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (iiSection 8.1(e), then Parent shall pay to the Company an amount equal to $1,950,000 (the “Company Termination Fee”) in cash within two Business Days business days after the termination of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent the amount of $1,000,000 in respect of the Company’s expenses in connection with this Agreement, which shall be credited against the fees payable pursuant to this Section 9.1(k8.3(c), Parent shall pay to the Company within two Business Days of such termination the Company Termination Feeif any. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent a party fails to pay when due any amount payable by it such party under this Section 9.38.3, then Parent shall then: (i) such party shall reimburse the Company other party for reasonable all costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company other party of its rights under this Section 9.3, 8.3; and (ii) such party shall pay to the Company other party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on through the date such overdue amount is actually paid to the Company other party in full) at a rate per annum equal to the lower of: (i) 350 basis points over the “prime rate” (as published in The Wall Street Journal announced by Citibank, N.A. or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and ; or (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement maximum rate permitted by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payableapplicable Legal Requirements.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that (i) all Parent and the Company shall also share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement Expenses shall be paid by the Company in cash Parent (or on behalf of Parent) at or prior to the Closing and (and ii) all Company Transaction Expenses shall be Company Transaction Expenses)paid by the Company. (b) If (i) this Agreement is terminated by the Company pursuant to Section 9.1(f), and (ii) an Acquisition Proposal with respect to Parent shall have been publicly announced or disclosed or otherwise communicated to Parent or the Parent Board after the date of this Agreement but prior to the termination of this Agreement Agreement, and (iii) within twelve 12 months after the date of such termination, Parent enters into a definitive agreement for with respect to any Subsequent Transaction, then Parent shall pay to the Company an amount equal to $600,000, within five Business Days of such entry into a definitive agreement with respect to a Subsequent Transaction in respect of the Transaction. (c) If (i) this Agreement is terminated by Parent pursuant to Section 9.1(g), and (ii) an Acquisition Proposal referred with respect to in clause the Company shall have been publicly announced or disclosed or otherwise communicated to the Company or the Company Board after the date of this Agreement but prior to the termination of this Agreement, and (iii) within 12 months after the date of such termination, the Company enters into a definitive agreement with respect to any Subsequent Transaction, then the Company shall pay to Parent an amount equal to $700,000 within five Business Days of such entry into a definitive agreement with respect to a Subsequent Transaction. (d) If this Agreement is terminated (i) by Parent pursuant to Section 9.1(d), or (ii) by the Company pursuant to Section 9.1(b) and the Company Stockholder Written Consent evidencing the Required Company Stockholder Vote has not been obtained by the Company, then the Company shall pay to Parent within five Business Days of such termination an amount equal to Parent’s documented out-of-pocket expenses incurred in connection with this Agreement and the Contemplated Transactions up to an aggregate of $300,000. (e) If (i) this Agreement is terminated by either Parent or the Company pursuant to Section 9.1(e), or (ii) by Parent pursuant to Section 9.1(b) and the Required Parent Stockholder Vote has not been obtained by Parent, then Parent shall pay to the Company within five Business Days of such termination an amount equal to the Company’s documented out-of-pocket expenses incurred in connection with this Agreement and the Contemplated Transactions up to an aggregate of $300,000. (f) If this Agreement is terminated (i) by the Company pursuant to Section 9.1(h), then Parent shall pay to the Company an amount equal to the Company’s documented out-of-pocket expenses incurred in connection with this Agreement and the Contemplated Transactions up to an aggregate of $1,950,000 (the “Company Termination Fee”) 300,000 within two five Business Days of consummation of such Subsequent Transaction. terminating this Agreement, (cii) If this Agreement is terminated by Parent pursuant to Section 9.1(k9.1(i), Parent then the Company shall pay to Parent an amount equal to Parent’s documented out-of-pocket expenses incurred in connection with this Agreement and the Company Contemplated Transactions up to an aggregate of $300,000 within two five Business Days of such termination the Company Termination Feeterminating this Agreement. (dg) Any fee payable by the Company Termination Fee due or Parent under Section 9.2 or this Section 9.3 shall be promptly paid within one Business Day by wire transfer of same day fundspursuant to written instructions provided by the Party being paid. If Parent a Party fails to pay when due any amount payable by it under Section 9.2 or this Section 9.3, then Parent such Party shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company other Party interest on such overdue amount (for 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 Company other Party in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (eh) The Parties agree that, (i) subject to Section 9.2, payment of any fee payable by Parent to the Company Termination Fee shallunder this Section 9.3, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this AgreementAgreement under the circumstances described in this Section 9.3, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of any fee payable by Parent to the Company Termination Fee under this Section 9.3 (xA) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (yB) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (zC) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. ; provided, however, that nothing in this Section 9.3(h) shall limit the rights of Parent and Merger Sub under Section 10.11. (i) The Parties agree that, (i) subject to Section 9.2, any fee payable by the Company to Parent under this Section 9.3 shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of Parent following the termination of this Agreement under the circumstances described in this Section 9.3, it being understood that in no event shall the Company be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of any fee payable by the Company to Parent under this Section 9.3 (A) the Company shall have no further liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (B) neither Parent nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (C) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing in this Section 9.3(i) shall limit the rights of the Company under Section 10.11. (j) Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.

Expenses; Termination Fees. (a) Except as set forth in this Section 9.3, Section 5.8(d), and Section 5.11, all fees and expenses incurred in connection with this Agreement and the Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Merger is consummated; provided, however, that Parent Signal and Miragen shall share equally all fees and expenses, other than attorneys’ and accountants’ fees and expenses, incurred in relation to the filings by the Parties under any filing requirement under the HSR Act and any foreign antitrust Legal Requirement applicable to this Agreement and the Company Contemplated Transactions; provided, further, that Signal and Miragen shall also share equally all fees and expenses incurred by engagement of the Exchange Agent and in relation to the printing (e.g., paid to a financial printer) and filing with the SEC of the Form S-4 Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a financial printer or the SEC (it being agreed that the cost of which is allocated to the Company pursuant to the foregoing shall be a Company Transaction Expense). It is understood and agreed that all fees and expenses incurred or to be incurred by the Company in connection with the Contemplated Transactions and preparing, negotiating and entering into this Agreement and the performance of its obligations under this Agreement shall be paid by the Company in cash at or prior to the Closing (and shall be Company Transaction Expenses)thereto. (b) (i) If (iA) this Agreement is terminated by the Company Signal or Miragen pursuant to Section 9.1(e) or Section 9.1(f), (iiB) at any time before the Signal Stockholders’ Meeting an Acquisition Proposal with respect to Parent shall have Signal has been publicly announced or announced, disclosed or otherwise communicated to Parent or the Parent Signal Board after of Directors and (C) in the date of event this Agreement but prior to the termination of this Agreement and (iii) is terminated pursuant Section 9.1(e), within twelve 12 months after the date of such termination, Parent Signal enters into a definitive agreement for with respect to a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (ii)or consummates a Subsequent Transaction, then Parent Signal shall pay to Miragen, within 10 Business Days after termination (or, if applicable, upon the Company earlier of such entry into a definitive agreement with respect to a Subsequent Transaction or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,950,000 300,000 (the “Company Miragen Termination Fee”) within two Business Days of consummation of such Subsequent Transaction. (c) If this Agreement is terminated by Parent ), in addition to any amount payable to Miragen pursuant to Section 9.1(k9.3(c) or Section 9.3(e), Parent shall pay to the Company within two Business Days of such termination the Company Termination Fee. (d) Any Company Termination Fee due under this Section 9.3 shall be paid by wire transfer of same day funds. If Parent fails to pay when due any amount payable by it under this Section 9.3, then Parent shall (i) reimburse the Company for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred by it in connection with the collection of such overdue amount and the enforcement by the Company of its rights under this Section 9.3, and (ii) pay to the Company interest on such overdue amount (for 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 Company in full) at a rate per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required to be paid. (e) The Parties agree that, subject to Section 9.2, payment of the Company Termination Fee shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive remedy of the Company following the termination of this Agreement, it being understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion and (ii) following payment of the Company Termination Fee (x) Parent shall have no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated. Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which such amount is payable.