Common use of Notice of Termination; Effect of Termination and Abandonment Clause in Contracts

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: (i) no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any Fraud or Willful Breach of this Agreement or (B) as contemplated by Section 8.05(c) and Section 8.05(d); and (ii) Section 2.01(g), Section 2.02(b), the last sentence of Section 6.16(b), this Section 8.05, Article IX and the Confidentiality Agreement shall survive any termination of this Agreement. (c) In the event this Agreement is terminated pursuant to this Article VIII: (i) by either the Company or Parent pursuant to (x) Section 8.02(a) (End Date) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(a)) or (y) Section 8.02(c) (Termination of Offer) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(c)), and at the time of such termination described in clause (x) or (y), the Minimum Condition shall not have been satisfied and each of the Offer Conditions set forth in clause (b) (No Legal Prohibition), clause (c) (Antitrust Approvals), clause (d) (FIRB Approval), and clause (e) (New Zealand Overseas Investment Regime) of Annex I shall have been satisfied or (z) by Parent pursuant to Section 8.04(a) (Company Breach), and in any such case: (A) a bona fide Acquisition Proposal shall have been publicly disclosed or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination); and (B) within 12 months after any such termination and abandonment, (1) the Company or any of Subsidiaries shall have entered into a definitive Alternative Acquisition Agreement, and such Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), (2) the Company Board shall have approved or recommended to the Company’s stockholders any Acquisition Proposal, and subsequently consummates the Acquisition Proposal contemplated thereby (regardless of whether such consummation occurs within such 12-month period), or (3) any Acquisition Proposal shall have been consummated (with “50 percent” being substituted in lieu of “15 percent” in each instance thereof in the definition of “Acquisition Proposal” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 8.05(c)(i)(B)), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds upon the consummation of the applicable Acquisition Proposal; (ii) by the Company pursuant to Section 8.03(b)(Superior Proposal), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with such termination; or (iii) by Parent pursuant to Section 8.04(b) (Change of Recommendation), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two Business Days following the date of such termination. (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 8.05 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties would not enter into this Agreement and accordingly, if the Company fails to promptly pay or cause to be paid the amount due pursuant to this Article VIII, and, in order to obtain such amount, Parent commences a Proceeding that results in a judgment against the Company for the Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent its costs and expenses (including attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee (or any portion thereof), as the case may be, at the prime rate as published in the Wall Street Journal in effect on the date such amount was required to be made from such date through the date of payment and (iii) notwithstanding anything to the contrary set forth in this Agreement, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this Agreement; provided, however, that any such payment shall not relieve the Company of any liability or damages incurred or suffered by Parent or Merger Sub to the extent such liability or damages were the result of or arise out of any: (x) Fraud or (y) a Willful Breach of this Agreement by the Company (including with respect to breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Article VIII), and in either such case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise for such Fraud or Willful Breach.

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company that Seller or Parent Buyer intends to terminate this AgreementAgreement and abandon the Transactions pursuant to Section 6.1, the Company Seller or ParentBuyer, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In Except to the extent provided in Section 6.2(c) or 6.2(e), in the event of termination of this Agreement is terminated pursuant to this Article VIIIVI, this Agreement shall become void and of no effect with no liability Liability to any Person on the part of any Party (or of any of its Affiliates Representatives or its or their respective RepresentativesAffiliates); provided, however, that: that (i) no such termination shall relieve any Party of any liability Liability or damages to any the other Party (A) resulting from actual (but not constructive) fraud or any Fraud willful or Willful Breach material breach of this Agreement or (B) as contemplated by Section 8.05(c) and Section 8.05(d); and (ii) Section 2.01(g), Section 2.02(b), the last sentence of Section 6.16(b), provisions set forth in this Section 8.056.2, Article IX VIII and the Confidentiality Agreement Agreements shall survive any the termination of this AgreementAgreement in accordance with its terms. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement are abandoned pursuant to this Article VIII: VI, (i) by either the Company Buyer or Parent Seller pursuant to (x) Section 8.02(a) (End Date) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(a6.1(b)(i), 6.1(b)(ii) or (y6.1(b)(iii) Section 8.02(c) (Termination of Offer) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(c)), and at the time of such termination described in clause termination, Seller would not otherwise be permitted to terminate this Agreement pursuant to Section 6.1(c)(ii), (xii) by Seller pursuant to Section 6.1(c)(i) or (y), the Minimum Condition shall not have been satisfied and each iii) by Buyer pursuant to Section 6.1(d) as a result of the Offer Conditions a breach by Seller of any covenant or agreement of Seller set forth in clause (b) (No Legal Prohibition), clause (c) (Antitrust Approvals), clause (d) (FIRB Approval), and clause (e) (New Zealand Overseas Investment Regime) of Annex I shall have been satisfied or (z) by Parent pursuant to Section 8.04(a) (Company Breach), and in any such case: (A) a bona fide Acquisition Proposal shall have been publicly disclosed or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination); and (B) within 12 months after any such termination and abandonment, (1) the Company or any of Subsidiaries shall have entered into a definitive Alternative Acquisition this Agreement, and such Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), (2) the Company Board shall have approved or recommended to the Company’s stockholders any Acquisition Proposal, and subsequently consummates the Acquisition Proposal contemplated thereby (regardless of whether such consummation occurs within such 12-month period), or (3) any Acquisition Proposal shall have been consummated (with “50 percent” being substituted in lieu of “15 percent” in each instance thereof in the definition of “Acquisition Proposal” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 8.05(c)(i)(B)), then the Company Seller shall pay or cause to be paid to Parent Buyer the Termination Fee Expense Reimbursement by wire transfer of immediately available funds upon within five Business Days following the consummation date that Buyer has provided reasonable verification of its reasonable and documented out-of-pocket costs and expenses in connection with this Agreement and the Transactions to Seller; provided that if this Agreement is terminated by Seller pursuant to Section 6.1(c)(i) or terminated by Seller or Buyer pursuant to Section 6.1(b)(i), 6.1(b)(ii) or 6.1(b)(iii), in each case, because Seller is notified by the DOJ that Buyer is not an acceptable buyer of the applicable Acquisition Proposal;Company, then the Expense Reimbursement shall be in an amount not to exceed $375,000. (d) In the event (i) Seller enters into an agreement with a Third Party for the sale of the Equity Interests, all or substantially all of the assets of the Company to such Third Party or similar transaction resulting in Seller or its affiliates no longer owning the Equity Interests or substantially all of the assets of the Company (an “Alternative Agreement”), (ii) Seller’s entry into such Alternative Agreement was in breach of Section 4.27, (iii) following such entry into the Alternative Agreement, this Agreement is terminated and the transactions contemplated by this Agreement are abandoned by either Buyer or Seller, (iv) the Company pursuant to Section 8.03(b)(Superior Proposal)aggregate purchase price for such sale is greater than $16,000,000, including any “earnout” or other deferred consideration, and (v) at the time of Seller’s entry into the Alternative Agreement, the ABC Merger Agreement has not been terminated, then the Company Seller shall pay or cause to be paid to Parent Buyer an amount equal to the difference between the aggregate purchase price for such sale, minus $16,000,000 (the “Seller Termination Fee by wire transfer of immediately available funds concurrently with such termination; or (iii) by Parent pursuant to Section 8.04(b) (Change of RecommendationFee”), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two five Business Days following the date of Seller’s entry into such terminationagreement. (de) The Parties acknowledge and agree that (i) in no event shall the Company Seller be required to pay the Expense Reimbursement or the Seller Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 8.05 6.2 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties Parties would not enter into this Agreement and accordingly, if the Company fails to promptly pay or cause to be paid the amount due pursuant to this Article VIII, and, in order to obtain such amount, Parent commences a Proceeding that results in a judgment against the Company for the Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent its costs and expenses (including attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee (or any portion thereof), as the case may be, at the prime rate as published in the Wall Street Journal in effect on the date such amount was required to be made from such date through the date of payment and (iii) notwithstanding anything to the contrary set forth in this Agreement, in the event that the Expense Reimbursement or Seller Termination Fee becomes payable by, and is paid or caused to be paid by, the CompanySeller, such fee shall be ParentBuyer’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this Agreement; provided, however, that any such payment shall not relieve the Company Seller of any liability or damages incurred or suffered by Parent or Merger Sub Buyer to the extent such liability or damages were the result of or arise out of any: any actual (xbut not constructive) Fraud fraud or (y) a Willful Breach any willful breach of this Agreement by the Company (including with respect to breaches of this Agreement pursuant to which the Expense Reimbursement or Seller Termination Fee shall have become or becomes payable pursuant to this Article VIIISection 6.2(e), and in either such case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise for such Fraud or Willful Breach).

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends The party hereto desiring to terminate this Agreement, the Company or Parent, as applicable, Agreement pursuant to this Article IX shall give written notice of such termination to the other Party or Parties (as the case may be) parties hereto specifying the provision or provisions of this Agreement Article IX pursuant to which such termination is purportedly effected and abandonment is intended including reasonable detail of the circumstances giving rise to be effected. (b) In the event such termination. If this Agreement is terminated pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no effect, without any liability to any Person on the part of any Party (party hereto or any of its Affiliates or its or their respective Representatives)representatives; providedprovided that, however, that: (i) the NDA, the Limited Guaranty (only to the extent reflected therein) and the provisions of Section 4.17 and 5.6 (Merger Expenses), Sections 6.14 and 7.6 (Public Announcements), Section 9.8 (Limitation on Liability), this Section 9.5, Section 10.10 (Expenses), Section 10.12 (Notices), Section 10.15 (Entire Agreement), Section 10.14 (Third Party Beneficiaries), Section 10.2 (Governing Law), Section 10.3 (Submission to Jurisdiction; Limitation on Suits Against Financing Sources), Section 10.5 (Assignment; Binding Upon Successors and Assigns), Section10.8 (Remedies; Specific Performance), Section 10.4 (Waiver of Jury Trial), Section 10.6 (Severability) and Section 10.13 (Interpretation; Rules of Construction) shall survive the termination hereof, (ii) the Company or Parent shall have such liability as provided for in Sections 9.6 below and 10.10 (Expenses), and (iii) subject to Section 9.8, (including the limitation on liability set forth therein), no such termination shall relieve any Party of party from any liability or damages to any other Party (A) resulting from any Fraud or Willful Breach a willful and material breach of this Agreement or (B) as contemplated by Section 8.05(c) and Section 8.05(d); and (ii) Section 2.01(g), Section 2.02(b), the last sentence of Section 6.16(b), this Section 8.05, Article IX and the Confidentiality Agreement shall survive any termination of this Agreement. (c) In the event this Agreement is terminated pursuant to this Article VIII: (i) by either the Company or Parent pursuant to (x) Section 8.02(a) (End Date) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(a)) or (y) Section 8.02(c) (Termination of Offer) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(c)), and at the time of such termination described in clause (x) or (y), the Minimum Condition shall not have been satisfied and each of the Offer Conditions set forth in clause (b) (No Legal Prohibition), clause (c) (Antitrust Approvals), clause (d) (FIRB Approval), and clause (e) (New Zealand Overseas Investment Regime) of Annex I shall have been satisfied or (z) by Parent pursuant to Section 8.04(a) (Company Breach), and in any such case: (A) a bona fide Acquisition Proposal shall have been publicly disclosed or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination); and (B) within 12 months after any such termination and abandonment, (1) the Company or any of Subsidiaries shall have entered into a definitive Alternative Acquisition Agreementits representations, and such Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within such 12-month period)warranties, (2) the Company Board shall have approved covenants or recommended to the Company’s stockholders any Acquisition Proposal, and subsequently consummates the Acquisition Proposal contemplated thereby (regardless of whether such consummation occurs within such 12-month period), or (3) any Acquisition Proposal shall have been consummated (with “50 percent” being substituted in lieu of “15 percent” in each instance thereof in the definition of “Acquisition Proposal” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 8.05(c)(i)(B)), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds upon the consummation of the applicable Acquisition Proposal; (ii) by the Company pursuant to Section 8.03(b)(Superior Proposal), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with such termination; or (iii) by Parent pursuant to Section 8.04(b) (Change of Recommendation), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two Business Days following the date of such termination. (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 8.05 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties would not enter into this Agreement and accordingly, if the Company fails to promptly pay or cause to be paid the amount due pursuant to this Article VIII, andfraud, in order to obtain such amount, Parent commences a Proceeding that results in a judgment against which case the Company for the Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent its costs and expenses (including attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee (or any portion thereof), as the case may be, at the prime rate as published in the Wall Street Journal in effect on the date such amount was required to be made from such date through the date of payment and (iii) notwithstanding anything to the contrary set forth in this Agreement, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this Agreement; provided, however, that any such payment shall not relieve the Company of any liability or damages incurred or suffered by Parent or Merger Sub to the extent such liability or damages were the result of or arise out of any: (x) Fraud or (y) a Willful Breach of this Agreement by the Company (including with respect to breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Article VIII), and in either such case Parent and/or Merger Sub non-breaching party shall be entitled to all rights and remedies available at law or in equity or at lawequity. Notwithstanding the forgoing, in contract, in tort or otherwise no event shall any party hereto be liable for such Fraud or Willful Breachpunitive damages.

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this AgreementAgreement other than pursuant to Section 8.03(b), the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: (i) no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any Fraud fraud or Willful Breach material breach of this Agreement or (B) as contemplated by Section 8.03(b), Section 8.05(c) and Section 8.05(d); and (ii) the provisions set forth in Section 2.01(g), Section 2.02(b), the last sentence of Section 6.16(b8.03(b), this Section 8.05, Article IX 8.05 and the Confidentiality Agreement second sentence of Section 9.01 shall survive any termination of this Agreement. (c) In the event this Agreement is terminated pursuant to this Article VIII: (i) by either the Company or Parent pursuant to (x) Section 8.02(a) (End Date) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(a)) or (y) Section 8.02(c) (Termination of Offer) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(c)), and at the time of such termination described in clause (x) or (y), the Minimum Condition shall not have been satisfied and each of the Offer Conditions conditions set forth in clause (b) (No Legal Prohibition), ) and clause (c) (Antitrust Regulatory Approvals), clause (d) (FIRB Approval), and clause (e) (New Zealand Overseas Investment Regime) of Annex I shall have been satisfied or (z) by Parent pursuant to Section 8.04(a) (Company Breach), and in any such caseand: (A) a bona fide Acquisition Proposal shall have been publicly disclosed or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination); and (B) within 12 months after any such termination and abandonment, (1) the Company or any of Subsidiaries shall have entered into a definitive Alternative Acquisition Agreement, and such Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), (2) the Company Board shall have approved or recommended to the Company’s stockholders any Acquisition Proposal, and subsequently consummates the such Acquisition Proposal contemplated thereby is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), or (3) any Acquisition Proposal shall have been consummated (with “50 percent” being substituted in lieu of “15 percent” in each instance thereof in the definition of “Acquisition Proposal” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 8.05(c)(i)(B)), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds upon the consummation of the applicable such Acquisition Proposal;; or (ii) by the Company pursuant to Section 8.03(b)(Superior 8.03(b) (Superior Proposal), then the Company shall pay ) or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with such termination; or (iii) by Parent pursuant to Section 8.04(b) (Change of Recommendation), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds funds, (A) in the case of to Section 8.03(b) (Superior Proposal), concurrently with the termination of this Agreement, and (B) in the case of Section 8.04(b) (Change of Recommendation), within two Business Days following the date of such termination. (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 8.05 and Section 8.03(b) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties would not enter into this Agreement and accordingly, if the Company fails to promptly pay or cause to be paid the amount due pursuant to this Article VIII, and, in order to obtain such amount, Parent commences a Proceeding that results in a judgment against the Company for the Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent its costs and expenses (including attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee (or any portion thereof), as the case may be, at the prime rate as published in the Wall Street Xxxx Xxxxxx Journal in effect on the date such amount was required to be made from such date through the date of payment and (iii) notwithstanding anything to the contrary set forth in this Agreement, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this Agreement; provided, however, that any such payment shall not relieve the Company of any liability or damages incurred or suffered by Parent or Merger Sub to the extent such liability or damages were the result of or arise out of any: (x) Fraud any fraud or (y) a Willful Breach willful and material breach of this Agreement by the Company (including with respect to breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Article VIII), and in either such which case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise for such Fraud or Willful Breachotherwise.

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this Agreement, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In the event this Agreement is terminated pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: : (i) no such termination shall relieve any Party of any liability or damages to any other Party Party (A) resulting from any Fraud or Willful Breach of this Agreement or (B) as contemplated by Section 8.05(c) and Section 8.05(d); and (ii) Section 2.01(g), Section 2.02(b), the last sentence of Section 6.16(b), this Section 8.05, Article IX and the Confidentiality Agreement shall survive any termination of this Agreement. (c) In the event this Agreement is terminated pursuant to this Article VIII: (i) by either the Company or Parent pursuant to (x) Section 8.02(a) (End Date) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(a)) or (y) Section 8.02(c) (Termination of Offer) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(c)), and at the time of such termination described in clause (x) or (y), the Minimum Condition shall not have been satisfied and each of the Offer Conditions set forth in clause (b) (No Legal Prohibition), clause (c) (Antitrust Approvals), clause clause (d) (FIRB Approval), and clause (e) (New Zealand Overseas Investment Regime) of Annex I shall have been satisfied or (z) by Parent pursuant to Section 8.04(a) (Company Breach), and in any such case: (A) a bona fide Acquisition Proposal shall have been publicly disclosed or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination); and (B) within 12 months after any such termination and abandonment, (1) the Company or any of Subsidiaries shall have entered into a definitive Alternative Acquisition Agreement, and such Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within such 12-12- month period), (2) the Company Board shall have approved or recommended to the Company’s stockholders any Acquisition Proposal, and subsequently consummates the Acquisition Proposal contemplated thereby (regardless of whether such consummation occurs within such 12-month period), or (3) any Acquisition Proposal shall have been consummated (with “50 percent” being substituted in lieu of “15 percent” in each instance thereof in the definition of “Acquisition Proposal” referenced in the definition of “Alternative Acquisition Agreement” or otherwise for purposes of this Section 8.05(c)(i)(B)), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds upon the consummation of the applicable Acquisition Proposal; (ii) by the Company pursuant to Section 8.03(b)(Superior Proposal), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with such termination; or (iii) by Parent pursuant to Section 8.04(b) (Change of Recommendation), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two Business Days following the date of such termination. (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 8.05 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties would not enter into this Agreement and accordingly, if the Company fails to promptly pay or cause to be paid the amount due pursuant to this Article VIII, and, in order to obtain such amount, Parent commences a Proceeding that results in a judgment against the Company for the Termination Fee (or any portion thereof), the Company shall pay or cause to be paid to Parent its costs and expenses (including attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee (or any portion thereof), as the case may be, at the prime rate as published in the Wall Street Journal in effect on the date such amount was required to be made from such date through the date of payment and (iii) notwithstanding anything to the contrary set forth in this Agreement, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this Agreement; provided, however, that any such payment shall not relieve the Company of any liability or damages incurred or suffered by Parent or Merger Sub to the extent such liability or damages were the result of or arise out of any: (x) Fraud or (y) a Willful Breach of this Agreement by the Company (including with respect to breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Article VIII), and in either such case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise for such Fraud or Willful Breach.

Notice of Termination; Effect of Termination and Abandonment. (a) In the event the Company or Parent intends to terminate this AgreementAgreement and abandon the transactions contemplated by this Agreement pursuant to Section 9.2, 9.3 or 9.4, as applicable, the Company or Parent, as applicable, shall give written notice to the other Party or Parties (as the case may be) specifying the provision or provisions of this Agreement pursuant to which such termination and abandonment is intended to be effected. (b) In Except to the extent provided in Sections 9.5(c) and 9.5(d), in the event of termination of this Agreement is terminated and abandonment of the transactions contemplated by this Agreement pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no liability to any Person on the part of any Party (or any of its Affiliates or its or their respective Representatives); provided, however, that: and notwithstanding anything to the contrary set forth in this Agreement, (i) no such termination shall relieve any Party of any liability or damages to any other Party (A) resulting from any Fraud fraud or Willful Breach of this Agreement or (B) as contemplated by Section 8.05(c) and Section 8.05(d); Agreement, and (ii) Section 2.01(g), Section 2.02(b), the last sentence of Section 6.16(b), provisions set forth in this Section 8.05, 9.5 and Article IX and the Confidentiality Agreement X shall survive any termination of this Agreement and any abandonment of the transactions contemplated by this Agreement. (c) In the event this Agreement is terminated and the transactions contemplated by this Agreement abandoned pursuant to this Article VIIIIX: (i) by either the Company or Parent pursuant to (x) Section 8.02(a9.2(a) (End Outside Date) or Section 9.2(a) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(a)Requisite Company Vote Not Obtained) or (y) Section 8.02(c) (Termination of Offer) (but only if at such time Parent has complied with its obligations under this Agreement in all material respects such that Parent would not be prohibited from terminating this Agreement pursuant to the proviso of Section 8.02(c)), and at the time of such termination described in clause (x) or (y), the Minimum Condition shall not have been satisfied and each of the Offer Conditions set forth in clause (b) (No Legal Prohibition), clause (c) (Antitrust Approvals), clause (d) (FIRB Approval), and clause (e) (New Zealand Overseas Investment Regime) of Annex I shall have been satisfied or (z) by Parent pursuant to Section 8.04(a9.4(a) (Company Breach)) and, and in any such each case: (A) (x) a bona fide Acquisition Proposal shall have been publicly disclosed to the Company Board or (y) any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and and, in each case, such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (1) prior to the Company Stockholders Meeting (including any postponement, recess or adjournment thereof taken in accordance with this Agreement), with respect to termination and abandonment pursuant to Section 9.2(a) (Requisite Company Vote Not Obtained) or (2) prior to the date of such termination, with respect to any termination and abandonment pursuant to Section 9.4(a) (Company Breach); and (B) provided that for purposes of this Section 9.5(c)(i), an Acquisition Proposal with respect to the Company shall not be deemed to have been “withdrawn” if, within 12 months after any of such termination and abandonment, (1) the Company or any of its Subsidiaries shall have entered into a definitive an Alternative Acquisition Agreement, and Agreement with respect to such Acquisition Proposal, or shall have consummated any Acquisition Proposal is subsequently consummated (regardless of whether such consummation occurs within such 12-month period), (2) or the Company Board shall have approved or recommended to the Company’s stockholders any Acquisition Proposalor otherwise not opposed, and subsequently consummates the Acquisition Proposal contemplated thereby (regardless of whether such consummation occurs within such 12-month period), or (3) any Acquisition Proposal shall have been consummated (with “50 percent” being substituted in lieu of “15 percent” in each instance thereof in the definition of “Acquisition Proposal” referenced in the definition of “Alternative Acquisition Agreement” made by or otherwise for purposes of this Section 8.05(c)(i)(B)), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds upon the consummation of the applicable Acquisition Proposal; (ii) by the Company pursuant to Section 8.03(b)(Superior Proposal), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds concurrently with such termination; or (iii) by Parent pursuant to Section 8.04(b) (Change of Recommendation), then the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer of immediately available funds within two Business Days following the date on behalf of such termination. (d) The Parties acknowledge and agree that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion, (ii) the agreements set forth in this Section 8.05 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties would not enter into this Agreement and accordingly, if the Company fails to promptly pay or cause to be paid the amount due pursuant to this Article VIII, and, in order to obtain such amount, Parent commences a Proceeding that results in a judgment against the Company for the Termination Fee (Person or any portion thereof), the Company shall pay or cause to be paid to Parent of its costs and expenses (including attorneys’ fees) in connection with such Proceeding, together with interest on the Termination Fee (or any portion thereof), as the case may be, at the prime rate as published in the Wall Street Journal in effect on the date such amount was required to be made from such date through the date of payment and (iii) notwithstanding anything to the contrary set forth in this Agreement, in the event that the Termination Fee becomes payable by, and is paid or caused to be paid by, the Company, such fee shall be Parent’s sole and exclusive remedy for monetary damages or other relief (including specific performance) pursuant to this AgreementAffiliates; provided, however, that any such payment shall not relieve the Company of any liability or damages incurred or suffered by Parent or Merger Sub to the extent such liability or damages were the result of or arise out of any: (x) Fraud or (y) a Willful Breach of this Agreement by the Company (including with respect to breaches of this Agreement pursuant to which the Termination Fee shall have become or becomes payable pursuant to this Article VIII), and in either such case Parent and/or Merger Sub shall be entitled to all rights and remedies available in equity or at law, in contract, in tort or otherwise for such Fraud or Willful Breach.and