Common use of Fees and Expense Reimbursement Clause in Contracts

Fees and Expense Reimbursement. (a) In the event that (A) prior to the termination of this Agreement, a Company Acquisition Proposal is publicly submitted, publicly proposed, publicly disclosed or otherwise communicated to the Company Board prior to, and not withdrawn at the date of termination of this Agreement, (B) this Agreement is terminated by the Company or Parent pursuant to Section 8.1(e) (Outside Date) or Section 8.1(f) (Failure to Obtain Company Stockholder Approval) or by Parent pursuant to Section 8.1(c) (Company Breach) and (C) within twelve (12) months after the date this Agreement is terminated, the Company consummates a Company Acquisition Proposal or enters into a definitive agreement providing for the consummation of a Company Acquisition Proposal, then the Company will pay (or cause to be paid) to Parent the Company Termination Fee upon the consummation of such Company Acquisition Proposal. For purposes of this Section 8.4(a), any reference in the definition of Company Acquisition Transaction to “twenty percent (20%)” shall be deemed to be to be a reference to “fifty percent (50%).” (b) In the event this Agreement is terminated by Parent pursuant to Section 8.1(g) (Company Change in Recommendation), the Company will pay (or cause to be paid) to Parent the Company Termination Fee within two (2) Business Days of termination of this Agreement. (c) In the event this Agreement is terminated by the Company pursuant to Section 8.1(h) (Company Superior Proposal), the Company will pay (or cause to be paid) to Parent the Company Termination Fee prior to or concurrently with the termination of this Agreement. (d) Any payment of the Company Termination Fee will be made in cash by wire transfer of same day funds to an account designated in writing by Parent. (e) In the event this Agreement is terminated by (i) the Company pursuant to Section 8.1(d) or Section 8.1(i), or (ii) Parent or the Company pursuant to Section 8.1(e) at such time the Company could have validly terminated this Agreement pursuant to Section 8.1(d) or Section 8.1(i), Parent will pay (or cause to be paid) to the Company the Parent Termination Fee within two (2) Business Days of termination of this Agreement. Any payment of the Parent Termination Fee will be made in cash by wire transfer of same day funds to an account designated in writing by the Company. (f) Each of the Parties acknowledges that the provisions of this Section 8.4 are an integral part of the Transactions and that, without these agreements, the Other Party would not enter into this Agreement. Each of the Parties further acknowledges that the payment of the Company Termination Fee by the Company or the Parent Termination Fee by Parent is not a penalty, but, is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, in the case of the payment of the Company Termination Fee, or the Company and its Subsidiaries, in the case of payment of the Parent Termination Fee, in the circumstances in which such fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision. If the Company or Parent fails to promptly pay the amount due by it pursuant to this Section 8.4, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, Parent or the Company commences a Proceeding that results in judgment for Parent, or the Company, as applicable, the non-prevailing party shall pay the other party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. (g) Subject in all respects to Parent’s rights set forth in Section 9.9 and the reimbursement obligations of the Company under Section 8.4(f), in the event the Company Termination Fee is paid to Parent in circumstances for which such fee is payable pursuant to Section 8.4(a), 8.4(b) or 8.4(c), payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and the Parent Related Parties against the Company and the Company Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, financing sources, managers, members, Representatives or Affiliates (collectively, “Company Related Parties”) for any losses or damages suffered as a result of the failure of the Transactions to be consummated, except in the case of fraud or a Willful Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful Breach), and upon payment of such amount, the Company Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of the Company in the case of fraud or a Willful Breach of any covenant, agreement or obligation. (h) Subject in all respects to the Company’s rights set forth in Section 9.9 and the reimbursement obligations of Parent under Section 8.4(f), Section 6.16(c) and Section 6.17, in the event the Parent Termination Fee is paid to the Company in circumstances for which such fee is payable pursuant to Section 8.4(e), payment of the Parent Termination Fee, together with any amount payable pursuant to Section 8.4(f), shall be the sole and exclusive remedy (other than as provided in the Guarantee) of the Company and the Company Related Parties against Parent and the Parent Related Parties for any losses or damages suffered as a result of the failure of the Transactions to be consummated, and upon payment of such amount, Parent and the Parent Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement, the Equity Commitment Letter, the Guarantee, or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of Parent in the case of fraud. (i) In connection with any losses or damages suffered by any Parent Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which Parent is entitled to receive the Company Termination Fee in accordance with Section 8.4(a), Section 8.4(b) or Section 8.4(c) (in which case, Section 8.4(h) shall apply), and without limiting the reimbursement obligations of the Company under Section 8.4(f), Parent agrees, on behalf of itself and the Parent Related Parties, that the maximum aggregate monetary liability of the Company and the Company Related Parties, if any, shall be limited to the amount of the Company Termination Fee, and in no event shall Parent or any Parent Related Party seek or be entitled to recover from the Company or any Company Related Parties, and Parent on behalf of itself and the Parent Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of the Company in the case of fraud. (j) In connection with any losses or damages suffered by any Company Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or under the Guarantee or Equity Commitment Letter or otherwise, other than in circumstances in which the Company is entitled to receive the Parent Termination Fee in accordance with Section 8.4(e) (in which case Section 8.4(h) shall apply), the Company agrees, on behalf of itself and the Company Related Parties (including the Company Stockholder), that the maximum aggregate monetary liability of Parent and the Parent Related Parties (including the Guarantor) shall be limited to $133,000,000, and in no event shall the Company or any Company Related Party (including the Company Stockholder) seek or be entitled to recover from Parent or any Parent Related Parties (including the Guarantor), and the Company on behalf of itself and the Company Related Parties (including the Company Stockholder) hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of Parent or Merger Sub in the case of fraud. (k) As used herein, “Company Termination Fee” means a cash amount equal to $59,000,000, and (ii) “Parent Termination Fee” means a cash amount equal to $127,000,000.

Fees and Expense Reimbursement. (a) In the event that (Ai) prior to the termination of this Agreement, a Company Acquisition Alternative Proposal is publicly submitted, publicly proposed, publicly disclosed or otherwise communicated to the Company Board prior to, and not withdrawn at the date of termination of this Agreementtime of, the Company Stockholders Meeting, (Bii) this Agreement is terminated by Parent pursuant to Section 8.1(d) (Company Terminable Breach) or by the Company or Parent pursuant to Section 8.1(e8.1(f) (Outside Date) or Section 8.1(f8.1(c)(ii) (Failure to Obtain Company Stockholder Approval) or by Parent pursuant to Section 8.1(c) (Company Breach) ), and (Ciii) the Company enters into a definitive agreement with respect to, or consummates, a Company Alternative Proposal within twelve (12) 12 months after the date this Agreement is terminated, the Company consummates a Company Acquisition Proposal or enters into a definitive agreement providing for the consummation of a Company Acquisition Proposal, then the Company will pay (or cause to be paid) to Parent the Company Termination Fee upon Fee, within two (2) Business Days of the consummation of such Company Acquisition Alternative Proposal. For purposes of this Section 8.4(a), any reference in the definition of Company Acquisition Transaction Alternative Proposal to “twenty percent (2015%)” shall be deemed to be to be a reference to “fifty percent (more than 50%).” (b) In the event that (i) a Parent Alternative Proposal is publicly submitted, publicly proposed, publicly disclosed or otherwise communicated to the Parent Board prior to, and not withdrawn at the time of, the Parent Stockholders Meeting, (ii) this Agreement is terminated by the Company pursuant to Section 8.1(e) (Parent Terminable Breach) or by Parent or the Company pursuant to Section 8.1(f) (Outside Date) or Section 8.1(c)(i) (Failure to Obtain Parent Stockholder Approval), and (iii) Parent enters into a definitive agreement with respect to, or consummates, a Parent Alternative Proposal within 12 months after the date this Agreement is terminated, then Parent will pay to the Company the Parent Termination Fee, within two (2) Business Days of the consummation of such Parent Alternative Proposal. For purposes of this Section 8.4(b), any reference in the definition of Parent Alternative Proposal to “15%” shall be deemed to be to be a reference to “more than 50%.” (c) In the event this Agreement is terminated by Parent or the Company pursuant to Section 8.1(c)(ii) (Failure to Obtain Company Stockholder Approval) or by Parent pursuant to Section 8.1(d) (Company Terminable Breach), then the Company will pay to Parent the Parent Expenses (unless Parent is then entitled to terminate this Agreement pursuant to Section 8.1(g) (Company Change in Recommendation or Material Breach of Non-Solicit), in which event the Company will pay to Parent the Company Termination Fee) within two (2) Business Days after the date of such termination. (d) In the event this Agreement is terminated by Parent or the Company pursuant to Section 8.1(c)(i) (Failure to Obtain Parent Stockholder Approval) or by Company pursuant to Section 8.1(e) (Parent Terminable Breach), then Parent will pay to the Company the Company Expenses (unless the Company is then entitled to terminate this Agreement pursuant to Section 8.1(h) (Parent Change in Recommendation or Material Breach of Non-Solicit), in which event Parent will pay to the Company the Parent Termination Fee) within two (2) Business Days after the date of such termination. (e) In the event this Agreement is terminated by Parent pursuant to Section 8.1(g) (Company Change in RecommendationRecommendation or Material Breach of Non-Solicit), the Company will pay (or cause to be paid) to Parent the Company Termination Fee within two (2) Business Days after the date of termination of this Agreementsuch termination. (cf) In the event this Agreement is terminated by the Company pursuant to Section 8.1(h8.1(e) (Company Superior ProposalParent Change in Recommendation or Material Breach of Non-Solicit), the Company will pay (or cause to be paid) to Parent the Company Termination Fee prior to or concurrently with the termination of this Agreement. (d) Any payment of the Company Termination Fee will be made in cash by wire transfer of same day funds to an account designated in writing by Parent. (e) In the event this Agreement is terminated by (i) the Company pursuant to Section 8.1(d) or Section 8.1(i), or (ii) Parent or the Company pursuant to Section 8.1(e) at such time the Company could have validly terminated this Agreement pursuant to Section 8.1(d) or Section 8.1(i), then Parent will pay (or cause to be paid) to the Company the Parent Termination Fee within two (2) Business Days after the date of termination of this Agreement. such termination. (g) Any payment of the Parent Termination Fee Fee, the Company Termination Fee, Parent Expenses or Company Expenses will be made in cash by wire transfer of same day funds to an account designated in writing by the Companyrecipient of such payment. (fh) Each of the Parties acknowledges that the provisions of this Section 8.4 are an integral part of the Transactions transactions contemplated hereby and that, without these agreements, the Other Party would not enter into this Agreement. Each of The Parties agree that (i) in the Parties further acknowledges event that the payment of Company pays the Company Termination Fee by to Parent, the Company or has no further liability to Parent of any kind in respect of this Agreement and the transactions contemplated hereby and (ii) in the event that Parent pays the Parent Termination Fee by to the Company, Parent and Merger Sub have no further liability to the Company of any kind in respect of this Agreement and the transactions contemplated hereby. Each Party further acknowledges that any such Termination Fee is not a penalty, but, but rather is liquidated damages in a reasonable amount that will compensate the Company or Parent and Merger Sub, in the case of the payment of the Company Termination Fee, or the Company and its Subsidiaries, in the case of payment of the Parent Termination Feeas applicable, in the circumstances in under which such fee Termination Fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactionstransactions contained herein, which amount would otherwise be impossible to calculate with precisionincluding the Merger. If In addition, if either the Company or Parent fails to promptly pay the in a timely manner any amount due by it pursuant to this Section 8.4, then (i) such Party shall reimburse the other Party for all costs and expenses (including disbursements and fees of counsel) incurred in the collection of such overdue amounts, including in connection with any related claims or Proceedings commenced and (ii) such Party shall pay to the other Party interest shall accrue on such amount the amounts payable pursuant to this Section 8.4, including the costs and expenses described in clause (i) of this Section 8.4(h) from and including the date payment of such payment was required to be paid pursuant to the terms of this Agreement until amounts were due through the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, Parent or the Company commences a Proceeding that results in judgment for Parent, or the Company, as applicable, the non-prevailing party shall pay the other party its reasonable out-of-pocket costs and expenses made plus six percent (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. (g) Subject in all respects to Parent’s rights set forth in Section 9.9 and the reimbursement obligations of the Company under Section 8.4(f6%), in the event the Company Termination Fee is paid to Parent in circumstances for which such fee is payable pursuant to Section 8.4(a), 8.4(b) or 8.4(c), payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and the Parent Related Parties against the Company and the Company Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, financing sources, managers, members, Representatives or Affiliates (collectively, “Company Related Parties”) for any losses or damages suffered as a result of the failure of the Transactions to be consummated, except in the case of fraud or a Willful Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful Breach), and upon payment of such amount, the Company Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of the Company in the case of fraud or a Willful Breach of any covenant, agreement or obligation. (h) Subject in all respects to the Company’s rights set forth in Section 9.9 and the reimbursement obligations of Parent under Section 8.4(f), Section 6.16(c) and Section 6.17, in the event the Parent Termination Fee is paid to the Company in circumstances for which such fee is payable pursuant to Section 8.4(e), payment of the Parent Termination Fee, together with any amount payable pursuant to Section 8.4(f), shall be the sole and exclusive remedy (other than as provided in the Guarantee) of the Company and the Company Related Parties against Parent and the Parent Related Parties for any losses or damages suffered as a result of the failure of the Transactions to be consummated, and upon payment of such amount, Parent and the Parent Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement, the Equity Commitment Letter, the Guarantee, or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of Parent in the case of fraud. (i) In connection with any losses or damages suffered by any Parent Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which Parent is entitled to receive the Company Termination Fee in accordance with Section 8.4(a), Section 8.4(b) or Section 8.4(c) (in which case, Section 8.4(h) shall apply), and without limiting the reimbursement obligations of the Company under Section 8.4(f), Parent agrees, on behalf of itself and the Parent Related Parties, that the maximum aggregate monetary liability of the Company and the Company Related Parties, if any, shall be limited to the amount of the Company Termination Fee, and in no event shall Parent or any Parent Related Party seek or be entitled to recover from the Company or any Company Related Parties, and Parent on behalf of itself and the Parent Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of the Company in the case of fraud. (j) In connection with any losses or damages suffered by any Company Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or under the Guarantee or Equity Commitment Letter or otherwise, other than in circumstances in which the Company is entitled to receive the Parent Termination Fee in accordance with Section 8.4(e) (in which case Section 8.4(h) shall apply), the Company agrees, on behalf of itself and the Company Related Parties (including the Company Stockholder), that the maximum aggregate monetary liability of Parent and the Parent Related Parties (including the Guarantor) shall be limited to $133,000,000, and in no event shall the Company or any Company Related Party (including the Company Stockholder) seek or be entitled to recover from Parent or any Parent Related Parties (including the Guarantor), and the Company on behalf of itself and the Company Related Parties (including the Company Stockholder) hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of Parent or Merger Sub in the case of fraud. (k) As used herein, “Parent Termination Fee” means an amount equal to $4,500,000, and “Company Termination Fee” means a cash an amount equal to $59,000,0004,500,000 (each, and (ii) a “Parent Termination Fee” means a cash amount equal to $127,000,000”).

Fees and Expense Reimbursement. (a) In the event that (Ai) prior to the termination of this Agreement, a Company Acquisition an Alternative Proposal is publicly submitted, publicly proposed, publicly disclosed or otherwise communicated to the Company Board prior to, and not withdrawn at the time of, the date of the termination of this Agreement, (Bii) this Agreement is terminated by the Company or Parent pursuant to Section 8.1(e) (Outside Date) or Section 8.1(f) (Failure to Obtain Company Stockholder Approval) or by Parent pursuant to Section 8.1(c) (Company Terminable Breach) ), and (Ciii) the Company enters into a definitive agreement with respect to, or consummates, an Alternative Proposal within twelve (12) 12 months after the date this Agreement is terminated, the Company consummates a Company Acquisition Proposal or enters into a definitive agreement providing for the consummation of a Company Acquisition Proposal, then the Company will pay (or cause to be paid) to Parent the Company Termination Fee (except, if the termination is made pursuant to Section 8.1(e) (Outside Date), one half of the Termination Fee), less any amount previously paid by the Company pursuant to Section 8.4(f), upon the consummation earliest to date of when such Company Acquisition Proposaldefinitive agreement is executed or such Alternative Proposal is consummated. For purposes of this Section 8.4(a), any reference in the definition of Company Acquisition Transaction Alternative Proposal to “twenty percent (20%)” shall be deemed to be to be a reference to “fifty percent (more than 50%).” (b) In the event that (i) a Parent Alternative Proposal is publicly submitted, publicly proposed, publicly disclosed or otherwise communicated to the Parent Board prior to, and not withdrawn at the time of, the date of the termination of this Agreement, (ii) this Agreement is terminated by the Company or Parent pursuant to Section 8.1(e) (Outside Date) or Section 8.4(g) (Failure to Obtain Parent Stockholder Approval) or by Company pursuant to Section 8.4(d) (Parent Terminable Breach), and (iii) Parent enters into a definitive agreement with respect to, or consummates, a Parent Alternative Proposal within 12 months after the date this Agreement is terminated, then Parent will pay to the Company the Termination Fee (except, if the termination is made pursuant to Section 8.1(e) (Outside Date), one half of the Termination Fee), less any amount previously paid by Parent pursuant to Section 8.4(g), upon the earliest to date of when such definitive agreement is executed or such Parent Alternative Proposal is consummated. For purposes of this Section 8.4(b), any reference in the definition of Parent Alternative Proposal to “20%” shall be deemed to be to be a reference to “more than 50%.” (c) In the event this Agreement is terminated by Parent pursuant to Section 8.1(g8.1(h) (Company Change in RecommendationRecommendation or Material Breach of Non-Solicit), the Company will pay (or cause to be paid) to Parent the Company Termination Fee within two (2) Business Days of termination of this Agreement. (cd) In the event this Agreement is terminated by the Company pursuant to Section 8.1(h8.1(i) (Company Superior ProposalParent Change in Recommendation or Material Breach of Non-Solicit), Parent will pay to the Company will pay (or cause to be paid) to Parent the Company Termination Fee prior to or concurrently with the within two Business Days of termination of this Agreement. (d) Any payment of the Company Termination Fee will be made in cash by wire transfer of same day funds to an account designated in writing by Parent. (e) In the event this Agreement is terminated by the Company pursuant to Section 8.1(j) (iCompany Superior Proposal), the Company will pay to Parent the Termination Fee contemporaneously with the termination of this Agreement. (f) In the event this Agreement is terminated by the Company or Parent pursuant to Section 8.1(f) (Failure to Obtain Company Stockholder Approval) or by Parent pursuant to Section 8.1(c) (Company Terminable Breach), then the Company will pay to Parent the Parent Expenses (unless Parent is then entitled to terminate this Agreement pursuant to Section 8.1(h) (Company Change in Recommendation or Material Breach of Non-Solicit), in which event the Company will pay to Parent the Termination Fee) within two Business Days of termination of this Agreement. (g) In the event this Agreement is terminated by the Company or Parent pursuant to Section 8.1(g) (Failure to Obtain Parent Stockholder Approval) or by the Company pursuant to Section 8.1(d) or Section 8.1(i(Parent Terminable Breach), or (ii) then Parent or will pay to the Company pursuant to Section 8.1(e) at such time the Company could have validly terminated Expenses (unless the Company is then entitled to terminate this Agreement pursuant to Section 8.1(d8.1(i) (Parent Change in Recommendation or Section 8.1(iMaterial Breach of Non-Solicit), in which event Parent will pay (or cause to be paid) to the Company the Parent Termination Fee Fee) within two (2) Business Days of termination of this Agreement. . (h) Any payment of the Termination Fee, Company Expenses or Parent Termination Fee Expenses will be made in cash by wire transfer of same day funds to an account designated in writing by the Companyrecipient of such payment. (fi) Each of the Parties acknowledges that the provisions of this Section 8.4 are an integral part of the Transactions transactions contemplated hereby and that, without these agreements, the Other Party would not enter into this Agreement. Each of the Parties further acknowledges that the payment of the Company Termination Fee by the Company or the Parent Termination Fee by Parent is not If a penalty, but, is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, in the case of the payment of the Company Termination Fee, or the Company and its Subsidiaries, in the case of payment of the Parent Termination Fee, in the circumstances in which such fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision. If the Company or Parent Party fails to promptly pay the amount due by it pursuant to this Section 8.4, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, Parent or the Company a Party commences a Proceeding that results in judgment for Parent, or the Company, as applicablesuch Party for such amount, the non-prevailing party defaulting Party shall pay the other party Other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. (g. The Parties agree that the monetary remedies set forth in Section 8.1(j) Subject in all respects to Parent’s rights and this Section 8.4 and the specific performance remedies set forth in Section 9.9 and the reimbursement obligations of the Company under Section 8.4(f), in the event the Company Termination Fee is paid to Parent in circumstances for which such fee is payable pursuant to Section 8.4(a), 8.4(b) or 8.4(c), payment of the Company Termination Fee shall be the sole and exclusive remedy remedies of Parent and the Parent Related Parties against (i) the Company and the Company Subsidiaries against Parent and Merger Sub and any of their respective former, current or future general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful Breach of any covenant, agreement or obligation (in which case only Parent shall be liable for damages for such fraud or Willful Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, except for the liability of Parent in the case of fraud or a Willful Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, financing sourcesshareholders, managers, members, Representatives or Affiliates (collectively, “Company Related Parties”) for any losses or damages loss suffered as a result of the failure of the Transactions Merger to be consummated, consummated except in the case of fraud or a Willful Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful Breach), and upon payment of such amount, none of the Company Related Parties and the Company Subsidiaries or any of their respective former, current or future general or limited partners, shareholders, managers, members, Representatives or Affiliates shall not have any further liability or obligation relating to or arising out of (i) this Agreement or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwisetransactions contemplated hereby, except for the liability of the Company in the case of fraud or a Willful Breach willful and material breach of any covenant, agreement or obligation. (h) Subject in all respects to the Company’s rights set forth in Section 9.9 and the reimbursement obligations of Parent under Section 8.4(f), Section 6.16(c) and Section 6.17, in the event the Parent Termination Fee is paid to the Company in circumstances for which such fee is payable pursuant to Section 8.4(e), payment of the Parent Termination Fee, together with any amount payable pursuant to Section 8.4(f), shall be the sole and exclusive remedy (other than as provided in the Guarantee) of the Company and the Company Related Parties against Parent and the Parent Related Parties for any losses or damages suffered as a result of the failure of the Transactions to be consummated, and upon payment of such amount, Parent and the Parent Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement, the Equity Commitment Letter, the Guarantee, or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of Parent in the case of fraud. (i) In connection with any losses or damages suffered by any Parent Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which Parent is entitled to receive the Company Termination Fee in accordance with Section 8.4(a), Section 8.4(b) or Section 8.4(c) (in which case, Section 8.4(h) shall apply), and without limiting the reimbursement obligations of the Company under Section 8.4(f), Parent agrees, on behalf of itself and the Parent Related Parties, that the maximum aggregate monetary liability of the Company and the Company Related Parties, if any, shall be limited to the amount of the Company Termination Fee, and in no event shall Parent or any Parent Related Party seek or be entitled to recover from the Company or any Company Related Parties, and Parent on behalf of itself and the Parent Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of the Company in the case of fraud. (j) In connection with any losses or damages suffered by any Company Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or under the Guarantee or Equity Commitment Letter or otherwise, other than in circumstances in which the Company is entitled to receive the Parent Termination Fee in accordance with Section 8.4(e) (in which case Section 8.4(h) shall apply), the Company agrees, on behalf of itself and the Company Related Parties (including the Company Stockholder), that the maximum aggregate monetary liability of Parent and the Parent Related Parties (including the Guarantor) shall be limited to $133,000,000, and in no event shall the Company or any Company Related Party (including the Company Stockholder) seek or be entitled to recover from Parent or any Parent Related Parties (including the Guarantor), and the Company on behalf of itself and the Company Related Parties (including the Company Stockholder) hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of Parent or Merger Sub in the case of fraud. (k) As used herein, “Company Termination Fee” means a cash amount equal to $59,000,000, and (ii) “Parent Termination Fee” means a cash amount equal to $127,000,00026,116,219.

Fees and Expense Reimbursement. (a) In the event that (A) prior to the termination of this Agreement, a Company Acquisition Proposal is publicly submitted, publicly proposed, publicly disclosed or otherwise communicated to the Company Board prior to, and not withdrawn at the date of termination of this Agreement, (B) this Agreement is terminated by the Company or Parent pursuant to Section 8.1(e) (Outside Date) or Section 8.1(f) (Failure to Obtain Company Stockholder Approval) ), or by Parent pursuant to Section 8.1(c) (Company Breach) Breach of Representations, Warranties and Covenants), and (C) the Company enters into a definitive agreement with respect to, or consummates, a Company Acquisition Proposal within twelve (12) months after the date this Agreement is terminated, the Company consummates a Company Acquisition Proposal or enters into a definitive agreement providing for the consummation of a Company Acquisition Proposal, then the Company will pay (or cause to be paid) to Parent the Company Termination Fee upon the consummation earliest date of when such definitive agreement is executed or such Company Acquisition ProposalProposal is consummated. For purposes of this Section 8.4(a), any reference in the definition of Company Acquisition Transaction to “twenty percent (20%)” shall be deemed to be to be a reference to “fifty percent (50%).” (b) In the event this Agreement is terminated by Parent pursuant to Section 8.1(g) (Company Change in Recommendation, Failure to Confirm or Material Breach of Non-Solicit), the Company will pay (or cause to be paid) to Parent the Company Termination Fee within two (2) Business Days of termination of this Agreement. (c) In the event this Agreement is terminated by the Company pursuant to Section 8.1(h) (Company Change in Recommendation) and Section 8.1(i) (Company Superior Proposal), the Company will pay (or cause to be paid) to Parent the Company Termination Fee prior to or concurrently contemporaneously with the termination of this Agreement. (d) Any payment of the Company Termination Fee will be made in cash by wire transfer of same day funds to an account designated in writing by Parent. (e) In the event this Agreement is terminated by (i) the Company pursuant to Section 8.1(d) or Section 8.1(i), or (ii) Parent or the Company pursuant to Section 8.1(e) at such time the Company could have validly terminated this Agreement pursuant to Section 8.1(d) or Section 8.1(i), Parent will pay (or cause to be paid) to the Company the Parent Termination Fee within two (2) Business Days of termination of this Agreement. Any payment of the Parent Termination Fee will be made in cash by wire transfer of same day funds to an account designated in writing by the Companyrecipient of such payment. (fe) Each of the Parties acknowledges that the provisions of this Section 8.4 are an integral part of the Transactions and that, without these agreements, the Other Party would not enter into this Agreement. Each of the Parties further acknowledges that the payment of the Company Termination Fee by the Company or the Parent Termination Fee by Parent is not a penalty, but, is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, in the case of the payment of the Company Termination Fee, or the Company and its Subsidiaries, in the case of payment of the Parent Termination Fee, in the circumstances in which such fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision. If the Company or Parent fails to promptly pay the amount due by it pursuant to this Section 8.4, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, Parent or the Company commences a Proceeding that results in judgment for Parent, or the Company, as applicableParent for such amount, the non-prevailing party Company shall pay the other party Parent its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. (g. Notwithstanding anything to the contrary in this Agreement, the monetary remedies set forth in Section 8.1(i) Subject in all respects to Parent’s rights and this Section 8.4 and the specific performance remedies set forth in Section 9.9 and the reimbursement obligations of the Company under Section 8.4(f), in the event the Company Termination Fee is paid to Parent in circumstances for which such fee is payable pursuant to Section 8.4(a), 8.4(b) or 8.4(c), payment of the Company Termination Fee shall be the sole and exclusive remedy remedies of Parent and the Parent Related Parties Merger Sub against the Company and the Company Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, financing sources, managers, members, Representatives or Affiliates (collectively, “Company Related Parties”) for any losses or damages loss suffered as a result of the failure of the Transactions Merger to be consummated, consummated except in the case of fraud or a Willful Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful Breach), and upon payment of such amount, none of the Company Related Parties and the Company Subsidiaries or any of their respective former, current or future general or limited partners, stockholders, managers, members, Representatives or Affiliates shall not have any further liability or obligation relating to or arising out of (i) this Agreement or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of the Company in the case of fraud or a Willful Breach of any covenant, agreement or obligation. (h) Subject in all respects to the Company’s rights set forth in Section 9.9 and the reimbursement obligations of Parent under Section 8.4(f), Section 6.16(c) and Section 6.17, in the event the Parent Termination Fee is paid to the Company in circumstances for which such fee is payable pursuant to Section 8.4(e), payment of the Parent Termination Fee, together with any amount payable pursuant to Section 8.4(f), shall be the sole and exclusive remedy (other than as provided in the Guarantee) of the Company and the Company Related Parties against Parent and the Parent Related Parties for any losses or damages suffered as a result of the failure of the Transactions to be consummated, and upon payment of such amount, Parent and the Parent Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement, the Equity Commitment Letter, the Guarantee, or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of Parent in the case of fraud. (i) In connection with any losses or damages suffered by any Parent Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which Parent is entitled to receive the Company Termination Fee in accordance with Section 8.4(a), Section 8.4(b) or Section 8.4(c) (in which case, Section 8.4(h) shall apply), and without limiting the reimbursement obligations of the Company under Section 8.4(f), Parent agrees, on behalf of itself and the Parent Related Parties, that the maximum aggregate monetary liability of the Company and the Company Related Parties, if any, shall be limited to the amount of the Company Termination Fee, and in no event shall Parent or any Parent Related Party seek or be entitled to recover from the Company or any Company Related Parties, and Parent on behalf of itself and the Parent Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of the Company in the case of fraud. (j) In connection with any losses or damages suffered by any Company Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or under the Guarantee or Equity Commitment Letter or otherwise, other than in circumstances in which the Company is entitled to receive the Parent Termination Fee in accordance with Section 8.4(e) (in which case Section 8.4(h) shall apply), the Company agrees, on behalf of itself and the Company Related Parties (including the Company Stockholder), that the maximum aggregate monetary liability of Parent and the Parent Related Parties (including the Guarantor) shall be limited to $133,000,000, and in no event shall the Company or any Company Related Party (including the Company Stockholder) seek or be entitled to recover from Parent or any Parent Related Parties (including the Guarantor), and the Company on behalf of itself and the Company Related Parties (including the Company Stockholder) hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of Parent or Merger Sub in the case of fraud. (kf) As used herein, “Company Termination Fee” means a cash amount equal to two hundred four million dollars ($59,000,000, and (ii) “Parent Termination Fee” means a cash amount equal to $127,000,000204,000,000).

Fees and Expense Reimbursement. (a) In the event that (A) prior to the termination of this Agreement, a Company Acquisition Proposal is publicly submitted, publicly proposed, publicly disclosed or otherwise publicly communicated to the Company Board or otherwise generally made known to the stockholders of the Company prior to, and not withdrawn at prior to, the date of termination of this Agreement, (B) this Agreement is terminated (1) by the Company or Parent pursuant to Section 8.1(e) (Outside Date) or Section 8.1(f) (Failure to Obtain Company Stockholder Approval) or (2) by Parent pursuant to Section 8.1(c) (Company Breach) and (C) the Company enters into a definitive agreement with respect to, or consummates, a Company Acquisition Proposal within twelve (12) 12 months after the date this Agreement is terminated, the Company consummates a Company Acquisition Proposal or enters into a definitive agreement providing for the consummation of a Company Acquisition Proposal, then the Company will pay (or cause to be paid) to Parent the Company Termination Fee upon the consummation earliest date of when such definitive agreement is executed or such Company Acquisition ProposalProposal is consummated. For purposes of this Section 8.4(a), any reference in the definition of Company Acquisition Transaction to “twenty percent (20%)” shall be deemed to be to be a reference to “fifty percent (50%)”.” (b) In the event this Agreement is terminated by Parent pursuant to Section 8.1(g) (Company Change in Recommendation), the Company will pay (or cause to be paid) to Parent the Company Termination Fee within two (2) Business Days of termination of this Agreement. (c) In the event this Agreement is terminated by the Company pursuant to Section 8.1(h) (Company Change in Recommendation) or Section 8.1(i) (Company Superior Proposal), the Company will pay (or cause to be paid) to Parent the Company Termination Fee prior to or concurrently with the termination of this Agreement. (d) Any payment of In the event this Agreement is terminated by the Company pursuant to Section 8.1(d) (Parent Breach) or Section 8.1(j) (Parent’s Failure to Close), Parent shall pay, or cause to be paid, to the Company the Parent Termination Fee will be made in cash by wire transfer within two Business Days of same day funds to an account designated in writing by Parenttermination of this Agreement. (e) In the event this Agreement is terminated by (i) the Company pursuant to Section 8.1(d) or Section 8.1(i), or (ii) Parent or the Company pursuant to Section 8.1(e) at such time (Outside Date) and the Company could would have validly terminated been entitled to terminate this Agreement pursuant to Section 8.1(d) (Parent Breach) or Section 8.1(i8.1(j) (Failure to Close) but for such termination pursuant to Section 8.1(e), Parent will pay (shall pay, or cause to be paid) , to the Company the Parent Termination Fee within two (2) Business Days of termination of this Agreement. . (f) Any payment of the Company Termination Fee or the Parent Termination Fee will be made in cash by wire transfer of same day funds to an account designated in writing by the Companyrecipient of such payment. (fg) Each of the Parties acknowledges that the provisions of this Section 8.4 are an integral part of the Transactions and that, without these agreements, the Other Party would not enter into this Agreement. Each of the Parties further acknowledges that the payment of the Company Termination Fee by the Company or the Parent Termination Fee by Parent Parent, as applicable, is not a penalty, but, in each case, is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub, in the case of the payment of the Company Termination Fee, or the Company and its SubsidiariesCompany, in the case of payment of the Parent Termination Feeas applicable, in the circumstances in which such fee is fees are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision. If the Company or Parent Parent, as the case may be, fails to promptly pay the amount due by it pursuant to this Section 8.4, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, Parent or the Company or Parent, as the case may be, commences a Proceeding that results in judgment for Parent, or the Company, as applicableParty that commenced such Proceeding for such amount, the non-prevailing party Other Party shall pay the other party such commencing Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. (gh) Subject in all respects to the Company’s rights set forth in Section 9.9 and the reimbursement and indemnification obligations of Parent under Section 6.16(e), (i) the Company’s right to (A) terminate this Agreement and (B) receive the Parent Termination Fee (if and only if such fee is payable pursuant to Section 8.4(d) or Section 8.4(e)), together with any amounts payable pursuant to Section 8.4(g), shall be the sole and exclusive remedy (other than as provided in Section 9.9, the Equity Commitment Letter and the Guarantee) of the Company and the Company Subsidiaries against the Parent Related Parties for any breach, loss or damages suffered as a result or arising out of this Agreement, the Guarantee, the Equity Commitment Letter, the Debt Commitment Letter, any other documents and instruments executed by any Parent Related Party pursuant hereto, the Transaction and the other transactions contemplated by the foregoing (in each case other than the Confidentiality Agreement), including the failure of the Transactions to be consummated, and (ii) upon payment of such amount (if and only if such fee is payable pursuant to Section 8.4(d) or Section 8.4(e)), the Parent Related Parties shall not have any further liability or obligation relating to or arising out of this Agreement, the Guarantee, the Equity Commitment Letter, the Debt Commitment Letter, any other documents and instruments executed by any Parent Related Party pursuant hereto, the Transaction or any of the other transactions contemplated by the foregoing (in each case other than the Confidentiality Agreement). For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the Company shall be permitted to seek both a grant of specific performance in accordance with Section 9.9 and the payment of the Parent Termination Fee under this Section 8.4. (i) Subject in all respects to Parent’s rights set forth in Section 9.9 9.9, if and the reimbursement obligations of the Company under Section 8.4(f), in the event only if the Company Termination Fee is paid payable pursuant to Parent in circumstances for which Section 8.4(a), 8.4(b) or 8.4(c), (i) Parent’s right to (A) terminate this Agreement and (B) receive the Company Termination Fee (if and only if such fee is payable pursuant to Section 8.4(a), 8.4(b) or 8.4(c)), payment of the Company Termination Fee together with any amounts payable pursuant to Section 8.4(g), shall be the sole and exclusive remedy (other than as provided in Section 9.9) of Parent and the Parent Related Parties against the Company and the Company Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, financing sources, managers, members, Representatives or Affiliates (collectively, “Company Related Parties”) for any losses breach, loss or damages suffered as a result of or arising out of this Agreement any other documents and instruments executed by any Company Related Party pursuant hereto, the Transaction and the other transactions contemplated by the foregoing (in each case other than the Confidentiality Agreement), including the failure of the Transactions to be consummated, except in the case of fraud or a Willful Breach of any covenant, agreement or obligation and (in which case only the Company shall be liable for damages for such fraud or Willful Breach), and ii) upon payment of such amountamount (if and only if such fee is payable pursuant to Section 8.4(a), 8.4(b) or 8.4(c)), the Company Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement or Agreement, any other documents and instruments executed by any Company Related Party pursuant hereto, the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement Transaction or any of the other documents delivered herewith or executed transactions contemplated by the foregoing (in connection herewith or otherwise, except for each case other than the liability Confidentiality Agreement). For the avoidance of the Company doubt and notwithstanding anything in the case of fraud or a Willful Breach of any covenant, agreement or obligation. (h) Subject in all respects this Agreement to the Company’s rights set forth contrary, Parent shall be permitted to seek both a grant of specific performance in accordance with Section 9.9 and the reimbursement obligations of Parent under Section 8.4(f), Section 6.16(c) and Section 6.17, in the event the Parent Termination Fee is paid to the Company in circumstances for which such fee is payable pursuant to Section 8.4(e), payment of the Parent Termination Fee, together with any amount payable pursuant to Section 8.4(f), shall be the sole and exclusive remedy (other than as provided in the Guarantee) of the Company and the Company Related Parties against Parent and the Parent Related Parties for any losses or damages suffered as a result of the failure of the Transactions to be consummated, and upon payment of such amount, Parent and the Parent Related Parties shall not have any further liability or obligation relating to or arising out of (i) this Agreement, the Equity Commitment Letter, the Guarantee, or the Transactions, (ii) the failure of the Merger or the other Transactions to be consummated or (iii) any breach (or threatened or alleged breach) of, or failure (or threatened or alleged failure) to perform under, this Agreement or any of the other documents delivered herewith or executed in connection herewith or otherwise, except for the liability of Parent in the case of fraud. (i) In connection with any losses or damages suffered by any Parent Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which Parent is entitled to receive the Company Termination Fee in accordance with under this Section 8.4(a), Section 8.4(b) or Section 8.4(c) (in which case, Section 8.4(h) shall apply), and without limiting the reimbursement obligations of the Company under Section 8.4(f), Parent agrees, on behalf of itself and the Parent Related Parties, that the maximum aggregate monetary liability of the Company and the Company Related Parties, if any, shall be limited to the amount of the Company Termination Fee, and in no event shall Parent or any Parent Related Party seek or be entitled to recover from the Company or any Company Related Parties, and Parent on behalf of itself and the Parent Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of the Company in the case of fraud8.4. (j) In connection with any losses or damages suffered by any Company Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or under the Guarantee or Equity Commitment Letter or otherwise, other than in circumstances in which the Company is entitled to receive the Parent Termination Fee in accordance with Section 8.4(e) (in which case Section 8.4(h) shall apply), the Company agrees, on behalf of itself and the Company Related Parties (including the Company Stockholder), that the maximum aggregate monetary liability of Parent and the Parent Related Parties (including the Guarantor) shall be limited to $133,000,000, and in no event shall the Company or any Company Related Party (including the Company Stockholder) seek or be entitled to recover from Parent or any Parent Related Parties (including the Guarantor), and the Company on behalf of itself and the Company Related Parties (including the Company Stockholder) hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of Parent or Merger Sub in the case of fraud. (k) As used herein, (i) “Company Termination Fee” means a cash amount equal to $59,000,000, 97,013,974 and (ii) “Parent Termination Fee” means a cash amount equal to $127,000,000242,534,936.