Common use of Termination by Parent Clause in Contracts

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Delta Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) prior to the receipt of the approval of the Company’s stockholders satisfying the condition set forth in Section 8.1(a), the Board of Directors of the Company (i) publicly withholds or withdraws, or publicly proposes to withhold or withdraw, the Company Recommendation, (ii) fails to reaffirm the Company Recommendation within fifteen business days of receipt of Parent’s written request at any time when an Acquisition Proposal shall have been made a Company Change in Recommendation; and not rejected by the Board of Directors of the Company, provided that such fifteen-business-day period shall be extended for fifteen business days following any material modification to such Acquisition Proposal occurring after the receipt of Parent’s written request and provided, howeverfurther, that such fifteen-business-day period shall recommence each time an Acquisition Proposal has been made following the receipt of Parent’s written request by a Person that had not made an Acquisition Proposal prior to the receipt of Parent’s written request, or (iii) approves or recommends, or publicly proposes to approve or recommend, or authorizes the Company to enter into a binding agreement reflecting, any Acquisition Proposal (any of the foregoing, a “Company Adverse Recommendation Event”); (b) prior to the receipt of the approval of Parent’s stockholders satisfying the condition set forth in Section 8.1(a), the Board of Directors of Parent will not have approves a Superior Proposal in accordance with Section 7.2(b)(ii) and authorizes Parent to enter into a binding written agreement with respect to that Superior Proposal and, in connection with the right to terminate termination of this Agreement pursuant and entering into the agreement reflecting the Superior Proposal, pays to this Section 7.04(a) if the Company Requisite Vote has been obtainedin immediately available funds the Parent Termination Fee required to be paid by Section 9.5(c); or (bc) there has been a material breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and or warranty shall of the Company will have become untrue after the date of this Agreement, such so that Sections 6.02(aSection 8.2(a) or 6.02(b8.2(b) would not be satisfied and such this breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure curable by the earlier of Termination Date (x) as the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not same may be satisfied (unless capable of being cured within 30 daysextended). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of at any time prior to the Company Stockholder Approval having been obtained, (i) the Company Board shall have made a Company Change in Recommendation, (ii) the Company shall have failed to include the Company Board Recommendation in the Proxy Statement/Prospectus, (iii) the Company shall have entered into a Company Acquisition Proposal or (iv) the Company shall have materially breached or shall have failed to perform in any material respect its obligations set forth in Section 5.2; provided, however, provided that Parent will not have the Parent’s right to terminate this Agreement pursuant to this Section 7.04(a7.4(a) if shall expire upon receipt of the Company Requisite Vote has been obtained; orStockholder Approval; (b) at any time prior to the Effective Time, if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in Sections 6.02(a6.2(a) or 6.02(b6.2(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured prior to the earlier of (i) 30 days following notice to the Company from Parent of such breach or failure by the earlier of and (xii) the 30th day following such notice and (y) date that is three Business Days prior to the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.4(b) if Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).Agreement; or (c) at any time prior to the Parent Requisite Vote being Company Stockholder Approval having been obtained, (i) if the Parent Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.035.2, to enter into an Alternative a Parent Acquisition Agreement with respect to Proposal constituting a Parent Superior Proposal that did not result from a material breach of this AgreementProposal, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, Parent enters into an Alternative a Parent Acquisition Agreement providing for Proposal constituting a Parent Superior Proposal that did not result from a material breach of this Agreement Proposal, and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid the Termination Fee pursuant to Section 7.05(c)7.6.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board board of Directors directors of Parent at any time prior to the Effective Time, whether before or after the Requisite Parent Vote is obtained (unless otherwise specified below), upon written notice to the Company specifying the provision of this Agreement pursuant to which such termination is effective, if: (a) the Board of Directors of the an Adverse Company Recommendation Change shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; oroccurred; (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aSection 7.2(a) or 6.02(b7.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (xi) 30 days after written notice thereof is given by Parent to the Company and (ii) the 30th day following such notice and third Business Day prior to the End Date (y) as the Termination Date; provided that Parent shall not have the right to terminate this Agreement same may be extended pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days8.2(a).); (c) the Company (i) materially breaches the first sentence of Section 6.2 or (ii) materially breaches Section 6.3(a) or Section 6.4(a) by not filing the Proxy Statement/Prospectus or not holding the Company Stockholders Meeting, respectively; or (d) at any time prior to before the Requisite Parent Requisite Vote being obtained, is obtained (i) if the Board board of Directors directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, Parent to enter into an Alternative Parent Acquisition Agreement with respect to a definitive written agreement constituting a Parent Superior Proposal that did not result from a material breach of this AgreementProposal, (ii) concurrently the board of directors of Parent has complied in all material respects with its obligations under Sections 6.2(d) and 6.2(f) in respect of such Parent Superior Proposal and (iii) Parent has paid, or simultaneously with the termination of this AgreementAgreement pays, Parent, subject to complying with the terms of Termination Fee due under Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal 8.5(c)(iv) that did not result from a material breach of is payable if this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid is terminated pursuant to this Section 7.05(c8.4(d).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by Parent by action of the Parent Board (acting upon the recommendation of Directors of Parent the Special Committee) or the Special Committee if: (a) the Board a Change of Directors of the Company Recommendation shall have made occurred; provided that, following such a Change of Company Change in Recommendation; provided, however, that Parent will not shall no longer have the right to terminate this Agreement pursuant to this Section 7.04(a9.4(a) if after the Company Requisite Vote Stockholder Approval has been obtained; or; (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreementhereof, such that Sections 6.02(aSection 8.2(a) or 6.02(bSection 8.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the 30th day following such notice Company and (yii) one (1) Business Day before the Termination DateOutside Date (whether before or after the Company Stockholder Approval or the Parent Stockholder Approval and the Parent Majority of the Minority Stockholder Approval shall have been obtained); provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b9.4(b) if Parent is then in breach of this Agreement such that any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a8.3(a) or Section 6.03(b8.3(b) would not be satisfied (unless capable of being cured within 30 days).satisfied; (c) at any time prior to the time the Parent Requisite Vote being Stockholder Approval and the Parent Majority of the Minority Stockholder Approval shall been obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, in order to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal in accordance with Section 7.3; provided, that did not result from a material breach of the right to terminate this Agreement and (iiipursuant to this Section 9.4(c) shall not be available unless substantially concurrently with or prior to or concurrently with (and as a condition to) such termination, (i) Parent pays to the Company in immediately available funds any fees required to be paid the Parent Termination Fee pursuant to Section 7.05(c)9.5(b) and (ii) Parent duly executes and delivers a definitive Alternative Parent Acquisition Agreement with respect to such Parent Superior Proposal to the counterparty thereto; or (d) the Company Stockholder Approval shall not have been obtained within two (2) Business Days after the Form S-4 shall have been declared effective.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by action of Parent Board at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) (i) the Company Board has failed to make, withdrawn, modified or amended, in a manner adverse to Parent, or publicly proposed to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation; (ii) the Company Board has approved, endorsed or recommended any Acquisition Proposal; (iii) the Company Board has approved, endorsed, recommended, permitted or not prevented the Company or any of Directors its Subsidiaries to enter into, a merger agreement, acquisition agreement, purchase agreement or other similar agreement relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”) or a letter of intent, an agreement in principle or an option agreement relating to an Acquisition Proposal; (iv) the Company Board, upon request from Parent or Merger Sub, has failed to expressly publicly reaffirm within two (2) Business Days of such request (or in the event that the Company Stockholders Meeting is scheduled to occur within such two (2)-Business Day period, prior to such meeting), the Company Board Recommendation; provided, that (A) prior to the time of such request, (x) the Company shall have made received an Acquisition Proposal or public disclosure of a potential Acquisition Proposal has occurred (or has become publicly known), or (y) facts, events, changes, developments or circumstances related to the potential FDA Approval of Augment (including any communications with the FDA related to the application for FDA Approval of Augment) have been publicly disclosed (or become publicly known) (an “FDA Development”), and (B) the Company Change in RecommendationBoard shall not be required to make any such reaffirmation more than twice with respect to any Acquisition Proposal or any FDA Development; provided(v) a tender or exchange offer for the Company’s securities has commenced and the Company or the Company Board has failed to send to the Company’s stockholders, howeverwithin ten (10) Business Days after the commencement of any such tender or exchange offer, a statement that the Company and the Company Board recommend that the Company’s stockholders reject, and do not tender their shares of Company Common Stock in, such tender or exchange offer; or (vi) the Company or any of its Subsidiaries or Affiliates or the Company Board has publicly announced the Company’s intention to do any of the foregoing; provided that Parent will not have the right to must terminate this Agreement pursuant within twenty (20) days of the first to this Section 7.04(a) if occur of the Company Requisite Vote has been obtained; orforegoing events; (b) the Company has materially and intentionally breached its obligations under Section 7.2; (c) there has been a breach by the Company of any representation, warranty, covenant or agreement made by the Company contained in this Agreement, or any such representation Agreement (except the covenants and warranty shall have become untrue after the date of this Agreementagreements in Section 7.2), such that Sections 6.02(aa condition in Section 8.2(a) or 6.02(b) Section 8.2(b), as the case may be, would not be satisfied and that is not curable or, if curable by the Company, is not cured by the Company by the earlier of (i) twenty (20) days after written notice of such breach is given by Parent to the Company or failure to be true (ii) the Outside Date; (d) if there has been a Company Material Adverse Effect and such Company Material Adverse Effect is not curable or, if curable, is not cured following within twenty (20) days after written notice is given by Parent to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right stating its intention to terminate this Agreement pursuant to this Section 7.04(b9.3(d) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner and the basis for such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).termination; or (ce) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Adverse FDA Event has occurred.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time Time, whether before or after (except as otherwise provided below) receipt of the Parent Shareholder Approval and the Company Stockholder Approval, by action of the Board of Directors of Parent Parent, after consultation with its outside legal advisors, if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (bi) there has been a breach by the Company of any representation, warranty, covenant or agreement made by set forth in this Agreement or if any representation or warranty of the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreementuntrue, in either case such that Sections 6.02(a) or 6.02(b) the conditions set forth in Section 6.3 would not be satisfied and (ii) such breach or failure to be true is not curable or, if curable, is not cured following within 30 days after written notice to the Company from Parent of such breach or failure is given by Parent to the earlier of (x) the 30th day following such notice and (y) the Termination DateCompany; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.4(a) shall not be available to Parent if Parent it, at such time, is then in breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant or agreements under agreement set forth in this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would 6.2 shall not be satisfied satisfied; (unless capable b) a Company Adverse Recommendation Change shall have occurred or the Board of being cured within 30 days).Directors of the Company or any committee thereof shall have resolved to make a Company Adverse Recommendation Change; provided that the approvals required by Section 6.1(a)(ii) have not been obtained prior to such termination; or (c) at any time prior to the Parent Requisite Vote being obtainedCutoff Date, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to has received a Parent Superior Proposal that did not result from a material breach of this AgreementProposal, (ii) concurrently with the termination in light of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a such Parent Superior Proposal the Board of Directors of Parent shall have determined in good faith, after consultation with its outside legal advisors and financial advisors, that did proceeding with the Merger would be inconsistent with its fiduciary obligations, (iii) Parent has complied in all material respects with Section 5.16, (iv) Delaware Sub has previously paid (or concurrently pays) the fee provided for under Section 7.5(a)(iii), and (v) the Board of Directors of Parent concurrently approves, and Parent concurrently enters into, a binding definitive written agreement providing for the implementation of such Parent Superior Proposal; provided that Parent may not result effect such termination pursuant to this Section 7.4(c) unless and until (i) the Company receives at least three Business Days’ prior written notice from a material breach Parent of its intention to effect such termination pursuant to this Section 7.4(c); and (ii) during such three Business Day period, Parent shall, and shall cause its financial and legal advisors to, consider any adjustment in the terms and conditions of this Agreement and that the Company may propose (iii) prior it being understood that in the event of any material revisions to or concurrently with such terminationthe Parent Superior Proposal, Parent pays shall be required to deliver a new written notice to the Company pursuant to this Section 7.4(c) and to comply with the requirements of this Section 7.4(c) with respect to such new written information, except that all references in immediately available funds any fees required this proviso to three Business Days shall be deemed to be paid pursuant references to Section 7.05(ctwo Business Days in such event).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of Parent upon written notice to the Board of Directors of Parent Company if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue inaccurate after the date of this Agreement, in each case, such that Sections 6.02(aa condition set forth in Section 6.2(a) or 6.02(bSection 6.2(b) would not be satisfied and such breach or failure to be true inaccuracy is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (x) thirty (30) days after written notice thereof is given by Parent to the 30th day following such notice Company and (y) the Termination Outside Date; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to and abandon the Merger and the other Transactions under this Section 7.04(b7.4(a) if Parent or Merger Sub is then in breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant or agreements under agreement in this Agreement or any representation and warranty of Parent in a manner this Agreement fails to be true and correct, in each case, such that it would give rise to the conditions set forth failure of a condition in Section 6.03(a6.3(a) or Section 6.03(b6.3(b); (b) would the Stockholders’ Written Consent evidencing the Company Stockholder Approval shall not be satisfied have been delivered to the corporate secretary of the Company, and a facsimile copy of such Stockholders’ Written Consent shall not have been provided to Parent, in each case, prior to 5:00 p.m. (unless capable New York City time) on the date that is three (3) Business Days after the date of being cured within 30 days).this Agreement; or (c) at any time prior to the Parent Requisite Vote being time, but not after, the Company Stockholder Approval is obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted any Adverse Recommendation Change shall have been made by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Board.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant at any time prior to this Section 7.04(athe Effective Time if: (i) if the Company Requisite Vote has been obtained; or Board or a committee thereof makes a Company Change of Recommendation (b) there has been a breach regardless of any representation, warranty, covenant or agreement made by the whether such Company in this Agreement, or any such representation and warranty shall have become untrue after the date Change of this Agreement, such that Sections 6.02(aRecommendation was permitted under Section 5.4(e) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable orSection 5.4(f)); provided, if curablehowever, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to under this Section 7.04(b7.1(c)(i) after the Company Stockholder Approval is obtained; (ii) (1) the Company has committed a Willful Breach of Section 5.4 and (2) such Willful Breach cannot be cured by the date of the Company Stockholders Meeting or, if capable of being cured, is not cured within ten (10) Business Days after written notice of such breach to the Company; provided, however, that, from and after obtainment of the Company Stockholder approval, Parent is then in breach of shall not have the right to terminate this Agreement under this Section 7.1(c)(ii) for any such Willful Breach occurring prior to such obtainment; or (iii) the Company breaches, or fails to perform or comply with, any of its representations, warranties, covenants or agreements under this Agreement in hereunder, or any of the Company’s representations or warranties hereunder fails to be accurate, which failure (1) would give rise to the failure of a manner such that the conditions set forth condition in Section 6.03(a6.2(a) or Section 6.03(b) would not 6.2(b), as applicable, to be satisfied and (unless 2) is not reasonably capable of being cured within 30 days). (c) at any time by the Company or, if reasonably capable of being cured by the Company, is not cured by the Company prior to the earlier of (a) thirty (30) days after Parent Requisite Vote being obtained, (i) if the Board delivers written notice of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays failure to the Company and (b) the Outside Date (as it may be extended under Section 7.1(b)(i)); provided, however, that Parent shall not have the right to terminate this Agreement under this Section 7.1(c)(iii) if Parent or Merger Sub breach, or fail to perform or comply with, in immediately available funds any fees required material respect, any of their respective covenants or agreements hereunder, or any of Parent’s or Merger Sub’s respective representations or warranties hereunder fails to be paid pursuant accurate in any material respect, which failure would proximately give rise to the failure of a condition in Section 7.05(c6.3(a) or Section 6.3(b), as applicable.

Termination by Parent. This Agreement may be terminated and the Mergers Offer, Merger, and other transactions contemplated by this Agreement may be abandoned at any time prior to the First Effective Acceptance Time by action of the Board board of Directors directors of Parent if: : (a) the Company Board of Directors of the Company shall have made a Change of Recommendation, (b) at any time following receipt of an Acquisition Proposal, the Company Change in Recommendation; provided, however, that Parent will not board of directors shall have the right failed to terminate reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within three (3) business days after receipt of any written request to do so from Parent), (c) a tender offer or exchange offer for outstanding Shares shall have been publicly disclosed (other than by Parent or an affiliate of Parent) and, prior to the earlier of (i) the date prior to the date of the Stockholders Meeting and (ii) eleven (11) business days after the commencement of such tender or exchange offer pursuant to this Section 7.04(a) if Rule 14d-2 under the Exchange Act, the Company Requisite Vote has board of directors shall have failed to recommend unequivocally against acceptance of such offer, (d) there is pending any Transaction Proceeding that seeks (i) any damages and/or (i) any costs and disbursements (including attorneys’ and experts’ fees and expenses), in excess of $1,000,000 in the aggregate or that, if decided against the Company, would reasonably be expected to have a Material Adverse Effect (a “Material Transaction Proceeding”), (e) the Offer is terminated or expires without the Minimum Tender Conditions having been obtained; or satisfied or (bf) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, Agreement or any such representation and or warranty shall have become untrue after or incorrect on any date subsequent to the date of this Agreementhereof which would reasonably be expected to have a Material Adverse Effect , in any such case in a manner that Sections 6.02(a) or 6.02(b) would will cause any Tender Offer Condition not to be satisfied at any scheduled Expiration Time, and such breach or failure to be true or correct either is not curable or, if curable, is has not been cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xA) thirty (30) days after written notice thereof is given by Parent to the 30th day following such notice Company and (yB) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First CPI Merger Effective Time by action of the Board of Directors of Parent ifParent: (a) if (i) the Board of Directors of the Company shall have made withdrawn or adversely modified its approval or recommendation of this Agreement or after an Acquisition Proposal with respect to a Company Change in Recommendation; provided, however, that Parent will not have the right Acquisition Proposal or Healthcare Proposal has been made failed to terminate reconfirm its recommendation of this Agreement pursuant within ten business days after a written request by Parent to this Section 7.04(ado so or (ii) if the Company Requisite Vote has been obtained; orshall have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company referred to in Section 6.3. (b) if there has been a material breach by the Company of any representation, warranty, covenant or agreement made by the Company contained in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such Agreement that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following within 30 days after written notice to the Company from Parent of such breach is given by Parent to the party committing such breach, and as a result of any such breach or failure breaches by the earlier Company either of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a7.2(a)(i) or Section 6.03(b(b) would not be satisfied (unless capable of being cured within 30 days)at the Closing. (c) at if there has been a material breach by CPI of any time prior representation, warranty, covenant or agreement contained in this Agreement that is not curable or, if curable, is not cured within 30 days after written notice of such breach is given by Parent to the Parent Requisite Vote being obtainedparty committing such breach, and as a result of any such breach or breaches by CPI either of the conditions set forth in Section 7.2(a)(ii) or (b) would not be satisfied at the Closing. (d) if (i) if the Board Asset Purchase Agreement is terminated (other than pursuant to Section 11.3(a) of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, Asset Purchase Agreement to enter into an Alternative Parent a binding agreement concerning a Consumer Products Acquisition Proposal that constitutes a Superior Proposal) or (ii) within 10 business days after the termination of the Asset Purchase Agreement pursuant to such Section 11.3(a), the Company has not entered into a new agreement with respect to a Parent Superior Consumer Products Acquisition Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement Company Merger Sub and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees CPI Merger Sub are required to be paid accept as a Substitute APA pursuant to Section 7.05(c6.2(b).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time Time, whether before or after the shareholder approvals referred to in Section 7.01(a), by action of the Board of Directors of Parent ifBoard, in the event that: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there There has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a7.03(a) or 6.02(b7.03(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company. . (b) There is a material breach by one or more directors or Executives who is or are a shareholder(s) of the Company of any of his or her representations or warranties or any of his or her covenants or obligations contained in his or her Shareholders Agreement, including a breach of the obligation to vote his or her Shares in favor of the adoption of this Agreement, if such breach has resulted in the failure of this Agreement to be adopted by the shareholders of the Company and cannot be or has not been cured within thirty (30) days after the giving of written notice thereof to the breaching directors or Executives. (c) The Company shall have breached Section 6.06; the Company Board shall have effected a Change of Recommendation; at any time after the end of fifteen (15) Business Days following receipt of an Acquisition Proposal, the Company Board shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five (5) Business Days) after receipt of any written request to do so from Parent; or a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company Board recommends that the shareholders of the Company tender their shares in such tender or exchange offer or, within ten (10) Business Days after the commencement of such tender or exchange offer, the Company Board fails to recommend unequivocally against acceptance of such offer. (d) If (1) the Parent Average Price is more than $46.81, (2) such increase is not proportionate relative to the Index, (3) Parent delivers written notice to the Company from Parent of its intention to terminate this Agreement within forty-eight (48) hours following the date of such breach event and (4) the Company does not elect to pursue an Increase Adjustment as set forth below; provided, however, that, if Parent effects a stock dividend, reclassification, recapitalization, stock split, combination, exchange of shares or failure similar transaction after the date hereof and prior to the date on which the Parent Average Price is determined, the provisions of this Section 8.04(d) shall be appropriately adjusted so that such event does not in and of itself trigger a termination right on behalf of the Parent. An increase is not “proportionate relative to the Index” if the quotient obtained by dividing the Parent Average Price by the earlier of (x) Parent Initial Price is greater than the 30th day following such notice quotient obtained by dividing the Final Index by the Initial Index and (y) adding 0.15 to the Termination Date; provided that quotient. Parent shall not have the right be entitled to terminate this Agreement pursuant to this Section 7.04(b8.04(d) if (i) the Company elects, no later than the close of business on the second succeeding Business Day after the close of the Parent is then in breach of any of its representationsMeasuring Period, warranties, covenants or agreements under this Agreement in a manner to adjust the Exchange Ratio (an “Increase Adjustment”) such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to Exchange Ratio shall equal the number derived by dividing $3.45 by the Parent Requisite Vote being obtainedAverage Price, or (iii) if after the Board of Directors of date hereof, Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter publicly announces that it has entered into an Alternative Parent Acquisition Agreement a definitive agreement with respect to the acquisition of Parent by a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)third party.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of at any time prior to the Company Stockholder Approval having been obtained, (i) the Company Board shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a(ii) if the Company Requisite Vote has been obtained; orshall have failed to include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (iii) the Company shall have materially breached or shall have failed to perform in any material respect its obligations set forth in Section 5.2; (b) at any time prior to the Effective Time, whether before or after the Parent Stockholder Approval referred to in Section 6.1(a) is obtained, by action of the Parent Board, if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in Sections 6.02(a6.2(a) or 6.02(b6.2(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured prior to the earlier of (i) thirty (30) days following notice to the Company from Parent of such breach or failure by the earlier of and (xii) the 30th day following such notice and date that is three (y3) Business Days prior to the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.4(b) if Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).Agreement; (c) at any time prior to the Parent Requisite Vote Stockholder Approval being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.035.3, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.035.3, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c7.6(a).

Termination by Parent. This Agreement may be terminated and the Mergers Transactions may be abandoned at any time prior to the First Effective Time Closing by action of the Board of Directors of Parent ifParent: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a material breach of any representation, warranty, covenant or agreement made by the Company Debtor in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aSection 6.2(a) or 6.02(bSection 6.2(b) would not be satisfied and such material breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (x) thirty (30) days after written notice thereof is given by Parent to the 30th day following such notice Debtor and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) 7.5 if Parent any of the Purchaser Entities is then in material breach of any of its representations, warranties, covenants or agreements under contained in this Agreement in a manner such that the conditions set forth in Section 6.03(a6.3(a) or Section 6.03(b6.3(b) would not be satisfied satisfied; (unless capable b) if the Carlyle Holders have (i) filed any federal or state tax return, or any amendment to such a return, claiming any deduction for worthlessness of being cured within 30 days).its Debtor Shares (as defined in the Restructuring Support Agreement) or (ii) Transferred (as defined in the Restructuring Support Agreement) any Debtor Shares other than in accordance with the Restructuring Support Agreement; (c) at if any time condition set forth in Section 6.1 shall have become incapable of fulfillment prior to the Parent Requisite Vote being obtainedTermination Date other than as a result of a material breach by the Purchaser Entities of any covenant or agreement contained in this Agreement, and such condition is not waived by Parent; (id) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from there has been a material breach of this Agreementthe obligations set forth in Section 4.10; (e) other than in accordance with the Plan, if there has been (i) a termination or rejection by the Lessor of the Master Lease or any Agreement Regarding Subleases by the Lessor or any other Subsidiary of the Debtor, or (ii) concurrently the occurrence of a Default or an Event of Default (each as defined under the Centerbridge Facility) under the Centerbridge Facility that would permit the acceleration of Obligations (as defined under the Centerbridge Facility) and a failure by the Debtor to cure such Default or Event of Default within thirty (30) days of the occurrence of such a Default or Event of Default, or the acceleration of Obligations (as defined under the Centerbridge Facility); or (f) if (i) Debtor fails to comply with Section 5.3(f) or (ii) HCR III fails to pay such cash and cash equivalents available to pay part or all of the termination Reduced Cash Rent due from and after the date hereof after (A) making all transfers of this Agreementfunds from the Debtor’s home health care, hospice and other ancillary businesses other than the Debtor’s skilled nursing and inpatient rehabilitation facilities, memory care facilities and assisted living facilities (the “SNF Business”) that are permitted under the Centerbridge Facility and (B) paying all available cash and cash equivalents from the SNF Business subject to retaining such reserves and making such other expenditures as either (x) the CRO or (y) the Debtor Board has determined in good faith, after consulting with Parent, subject are necessary to complying with allow the terms Debtor to operate safely, prudently and in the ordinary course of Section 5.03business, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did and, in case of either of clauses (i) or (ii), HCR III does not result from a material breach cure such failure within five (5) business days of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)failure.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifClosing: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of breached any representation, warranty, covenant or agreement made by the Company contained in this Agreement, or if any such representation and or warranty shall have of the Company has become untrue after the date of this Agreementuntrue, in each case, such that Sections 6.02(athe conditions set forth in Section 7.3(a) or 6.02(b) would Section 7.3(b), as the case may be, could not be satisfied and as of the Closing Date; provided, however, that Parent may not terminate this Agreement pursuant to this Section 8.4(a) unless any such breach or failure to be true is has not curable or, if curable, is not been cured following within twenty (20) days after written notice by Parent to the Company from Parent informing the Company of such breach or failure to be true, except that no cure period shall be required for a breach which by its nature cannot be cured prior to the earlier of (x) the 30th day following such notice and (y) the Termination Outside Date; provided and provided, further, that Parent shall may not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).any material respect; or (cb) at any time prior to the Parent Requisite Vote being obtained, if (i) if the Company Board shall have effected a Change of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this AgreementBoard Recommendation, (ii) concurrently a tender offer or exchange offer for Shares that constitutes an Acquisition Proposal is commenced prior to obtaining the Requisite Stockholder Approval and the Company Board fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the termination acceptance of this Agreementsuch tender offer or exchange offer by its stockholders, Parentwhich shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company enters into a definitive agreement with respect to any Acquisition Proposal or (iv) the Company fails to include in immediately available funds any fees required to be paid pursuant to Section 7.05(c)the Proxy Statement the Company Board Recommendation.

Termination by Parent. This Agreement may be terminated terminated, and the Mergers transactions contemplated by this Agreement may be abandoned abandoned, at any time prior to the First Effective Time Offer Closing (notwithstanding any approval of this Agreement by action the shareholders of the Board of Directors of Parent ifCompany) by Parent: (a) if, prior to the Board of Directors of Offer Closing, (i) a Company Adverse Recommendation Change shall have occurred, (ii) the Company shall have made entered into, or publicly announced its intention to enter into, a Company Change Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) the Company shall have breached or failed to perform in Recommendation; providedany material respect any of the covenants and agreements set forth in Section 6.04, however(iv) the Company Board fails to reaffirm (publicly, that if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer relating to Company Common Stock shall have been commenced by a Person unaffiliated with Parent will and the Company shall not have the right sent to terminate this Agreement its shareholders pursuant to Rule 14e-2 under the Securities Act, within ten (10) Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Board Recommendation and recommending that shareholders reject such tender or exchange offer, or (vi) the Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of actions specified in this Section 7.04(a) if the Company Requisite Vote has been obtained8.03(a); or (b) there has been a breach of any representationif, warrantyprior to the Offer Closing, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) breached or 6.02(b) would not be satisfied and such breach or failure failed to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of perform any of its representations, warranties, covenants or other agreements under set forth in this Agreement in Agreement, which breach or failure to perform would give rise to the failure of a manner such that the conditions condition set forth in Section 6.03(a) 7.01 or Section 6.03(b) would not be satisfied any of the Offer Conditions (unless capable and in each case such breach or failure to perform is incapable of being cured by the Outside Date, or if curable, has not been cured within 30 daystwenty (20) days after its receipt of written notice thereof from Parent). (c) at any time prior to the Parent Requisite Vote being obtained; provided that such failure of a condition was not caused by, (i) if the Board of Directors of Parent authorizes Parentor a result of, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to by Parent or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Merger Sub.

Termination by Parent. This Agreement may be terminated and by Parent by action of the Mergers may be abandoned Parent Board at any time prior to the First Effective Time by action (whether before or, in the case of part (c) below, after the receipt of the Board of Directors of Requisite Company Vote or the Requisite Parent if:Vote): (a) if prior to the receipt of the Requisite Parent Vote at the Parent Stockholders Meeting, the Parent Board authorizes Parent, in full compliance with the terms of Directors this Agreement, to enter into an Acquisition Agreement (other than an Acceptable Confidentiality Agreement) in respect of a Superior Proposal; provided, that Parent shall have paid any amounts due pursuant to Section 7.06(b) [Fees and Expenses Following Termination] hereof in accordance with the terms, and at the times, specified therein; and provided further, that in the event of such termination, Parent substantially concurrently enters into such Acquisition Agreement; (b) if, prior to the receipt of the Requisite Company Vote, (i) a Company Adverse Recommendation Change shall have occurred or (ii) the Company shall have made a Company breached or failed to perform in any material respect any of its covenants and agreements set forth in Section 5.04 [No Solicitation or Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained]; or (bc) if there has shall have been a breach of any representation, warranty, covenant covenant, or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Mergers set forth in Section 6.02(a) [Representations and Warranties] or Section 6.02(b) [Performance of Covenants], as applicable, would not be satisfied and and, in either such case, such breach is incapable of being cured or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of the Outside Date or the date that is thirty (x30) the 30th day days following written notice of such notice and (y) the Termination Datebreach; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.03(c) if Parent or Merger Sub is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant, or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would obligation hereunder, which breach has not be satisfied (unless capable of being cured within 30 days)been cured. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Company Board of Directors of shall have (i) failed to include the Company shall have Recommendation in the Proxy Statement/Prospectus or (ii) made a Company Change in Recommendation; (b) at any time following receipt of an Acquisition Proposal, the Company Board shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within ten (10) Business Days after receipt of any written request to do so from Parent); provided, howeverthat the Company Board shall not be obligated to reaffirm its approval or recommendation more than once in connection with any one Acquisition Proposal (with each material amendment of an Acquisition Proposal being considered for purposes of this Section 7.4(b) as a new Acquisition Proposal); (c) a tender offer or exchange offer for outstanding Shares shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and, that Parent will not have prior to the right earlier of (i) the day prior to terminate this Agreement the date of the Stockholders Meeting or the day prior to the date of any adjournment, recess or postponement of the Stockholders Meeting, as the case may be, and (ii) eleven (11) Business Days after the commencement of such tender or exchange offer pursuant to this Section 7.04(a) if Rule 14d-2 under the Exchange Act, the Company Requisite Vote has been obtainedBoard fails to recommend against acceptance of such offer; or (bd) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aSection 6.2(a) or 6.02(b6.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the Company and (ii) the 30th day following such notice and (y) Business Day immediately prior to the Termination Date; provided provided, that Parent shall not have the right to terminate this the Agreement pursuant to this Section 7.04(b7.4(d) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days)Agreement. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) (i) the Board of Directors representations and warranties of the Company shall not be true and correct or the Company shall have made breached or failed to perform any of its covenants or agreements contained in this Agreement, which failure to be true and correct, breach or failure to perform (A) would give rise to the failure of a Company Change condition set forth in Recommendation; providedSection 7.2 and (B) cannot be cured by the Termination Date, howeveror if capable of being cured, that Parent will shall not have been cured within 30 days following receipt by the right Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.04(a8.4(a) if and the Company Requisite Vote has been obtained; or basis for such termination (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curableearlier, is not cured following notice the Termination Date); or (ii) the Company shall have breached in any material respect its obligations under Section 6.2, which breach (A) would give rise to the Company from Parent failure of a condition set forth in Section 7.2 and (B) cannot be cured by the Termination Date, or if capable of being cured, shall not have been cured within (x) five business days following receipt of written notice of such breach from Parent or failure by the earlier of (x) the 30th day following such notice and (y) any shorter period of time that remains between the date Parent provides written notice of such breach and the Termination Date; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent it is then in material breach of any of its representations, warranties, covenants or other agreements under this Agreement hereunder that would result in a manner such that the conditions any condition to Closing set forth in Section 6.03(a) or Section 6.03(b) would 7.3 not be satisfied (unless capable of being cured within 30 days).satisfied; or (cb) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes ParentCompany Board, whether or not permitted to the extent permitted do so by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, shall have effected a Change of Recommendation; (ii) concurrently with the termination of this Agreement, Parent, subject Company or the Company Board shall have publicly announced its intention to complying with do the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and foregoing; or (iii) prior to or concurrently with such termination, Parent pays to the Company shall have failed to include the Company Board Recommendation in immediately available funds any fees required the Form F-4 and Prospectus, or failed to be paid hold the Company Shareholders Meeting pursuant to Section 7.05(c)6.3.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time by the Parent Board prior to the First Effective Time by action of the Board of Directors of Parent Time, if: (a) (i) the Company Board shall have made a Change of Directors of Recommendation; (ii) the Company shall have made materially breached its obligations under Section 6.2 as a result of or in connection with any actions taken (or failed to be taken) by the Company’s Key Employees, financial advisors or legal advisors; or (iii) the Company Change shall have materially breached its obligations under Section 6.2 and such breach has resulted in Recommendationreceipt by the Company of any Acquisition Proposal; provided, however, provided that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a8.3(a) if after the Requisite Company Requisite Vote has been is obtained; or; (b) if at any time prior to the Effective Time, there has been a breach by the Company of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any such representation and or warranty of the Company shall have become untrue after the date of this Agreementuntrue, in either case, such that Sections 6.02(athe conditions in Section 7.2(a) or 6.02(bSection 7.2(b) would not be satisfied (and such breach or failure to be true and correct is not curable or, if curable, is not cured following notice prior to the Company from Parent of such breach Outside Date, or failure by if curable prior to the Outside Date, has not been cured within the earlier of (xi) thirty (30) days after the 30th day following such giving of notice and thereof by Parent to the Company or (yii) three Business Days prior to the Termination Date; provided Outside Date); provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.3(b) shall not be available to Parent if Parent is then it has breached its obligations set forth in breach of any of its representations, warranties, covenants or agreements under this Agreement in any manner that shall have proximately contributed to the occurrence of the failure of a manner such that condition to the consummation of the Merger; or (c) (i) the Specified Transaction shall not have been consummated by the Specified Transaction Deadline (as extended in accordance with Section 7.2(h)); (ii) (A) all conditions set forth in Section 6.03(a7.1 and Section 7.2 (other than the condition set forth in Section 7.2(h)) or Section 6.03(b) would not be have been and remain satisfied (unless other than such conditions as, by their nature, are only capable of being cured within 30 days). (c) satisfied by the delivery of documents or the taking of any other action at any time prior the Closing, but subject to the Parent Requisite Vote being obtained, satisfaction (ior waiver) if of such conditions at the Board Closing) and (B) the Company stands ready to consummate the Transactions on the date of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement such notice; and (iii) prior to or concurrently with such termination, Parent pays delivers written notice to the Company in immediately available funds any fees required that Parent has elected to be paid terminate this Agreement pursuant to this Section 7.05(c8.3(c) no later than three (3) Business Days following the Specified Transaction Deadline (as extended in accordance with Section 7.2(h)).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the Board of Directors of Parent if:Company): (a) the Board of Directors of IF (i) a Company Adverse Recommendation Change shall have occurred, (i) the Company shall have made entered into, or publicly announced its intention to enter into, a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Acquisition Agreement pursuant to this Section 7.04(a(other than an Acceptable Confidentiality Agreement) (ii) if the Company Requisite Vote has been obtainedshall have breached or failed to perform in any material respect any of the covenants and agreements set forth in Section 5.04 (iii) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (“10”) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal (iv) the Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of actions specified in this ; or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Merger set forth in Section 6.02(a) or Section 6.02(b) ), as applicable, would not be satisfied and and, in either such case, such breach or failure to be true is not curable or, if curable, is not incapable of being cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination End Date; provided that Parent shall not have given the right Company at least 15 days written notice prior to such termination stating Parent's intention to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifClosing: (a) if prior to the receipt of the Requisite Parent Vote at the Parent Stockholders Meeting, the Parent Board authorizes Parent, to the extent permitted by and subject to full compliance with the applicable terms and conditions of Directors this Agreement, including Section 5.04 hereof, to enter into an Acquisition Agreement (other than an Acceptable Confidentiality Agreement) in respect of a Superior Proposal; provided, that in the event of such termination, Parent substantially concurrently enters into such Acquisition Agreement; (b) if: (i) a Company Adverse Recommendation Change shall have occurred or the Company shall have made a approved or adopted, or recommended the approval or adoption of, any Company Change in RecommendationAcquisition Agreement; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(aor (ii) if the Company Requisite Vote has been obtainedshall have breached or failed to perform in any material respect any of its covenants and agreements set forth in Section 5.04 or Section 5.06; or (bc) if there has shall have been a breach of any representation, warranty, covenant covenant, or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Merger set forth in Section 6.02(a) or Section 6.02(b) ), as applicable, would not be satisfied and and, such breach or failure to be true is not curable incapable of being cured by the End Date; or, if curablecapable of being cured by the End Date, is shall not have been cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xi) 30 days after written notice thereof is given by Parent to the Company or (ii) the 30th day following such notice and (y) the Termination End Date; provided further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.03(c) if Parent or Merger Sub is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant, or agreements under this Agreement in a manner such obligation hereunder that the conditions would cause any condition set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)satisfied.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the The Company shall have made breached or failed to perform any of its representations and warranties, covenants or agreements set forth in this Agreement such that the conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied, and such breach or failure to perform is not capable of being cured by the Company prior to the Termination Date or is not cured by the Company within 30 days after Parent has delivered to the Company a Company Change in Recommendationwritten notice of such breach or failure to perform; provided, however, that Parent will may not have the right to terminate this Agreement pursuant to under this Section 7.04(a9.4(a) if the Company Requisite Vote has been obtained; or (b) there has been a Parent is then in breach of any representation, warranty, covenant or agreement made set forth in this Agreement such that the conditions set forth in Section 8.2(a) or Section 8.2(b) shall not be satisfied; or (b) a Company Adverse Recommendation Change shall have occurred; (c) prior to obtaining the Parent Shareholder Approval, concurrently with the entry by Parent into a binding definitive agreement providing for a Superior Proposal; provided, that (i) Parent has complied in all respects with Section 7.3, and (ii) Parent has previously paid (or concurrently with such termination pays to Company) the fee provided for under Section 9.5(b); or (d) the Company in this Agreement, or any such representation and warranty shall have become untrue after not received the date of this AgreementReconfirmation Opinion as provided in Section 8.2(e); provided, such however, that Sections 6.02(a) or 6.02(b) would not be all conditions set forth in Section 8.1 shall have been satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have waived the right to condition set forth in Section 8.2(e); provided, further, that Parent may not terminate this Agreement pursuant to under this Section 7.04(b9.4(d) if Parent is then in breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant or agreements under agreement set forth in this Agreement in a manner such that the conditions set forth in Section 6.03(a8.2(a) or Section 6.03(b8.2(b) would shall not be satisfied (unless capable of being cured within 30 days)satisfied. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time Time, whether before or after the stockholder or shareholder approvals referred to in Section 7.01(a), by action of the Board of Directors of Parent ifBoard, in the event that: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there There has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a7.03(a) or 6.02(b7.03(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company. (b) There is a material breach by one or more Stockholders who is or are a stockholder(s) of the Company of any of his or her representations or warranties or any of his or her covenants or obligations contained in his or her Stockholders Agreement, including a breach of the obligation to vote his or her Shares in favor of the adoption of this Agreement, if such breach has resulted in the failure of this Agreement to be adopted by the stockholders of the Company and cannot be or has not been cured within thirty (30) days after the giving of written notice thereof to the breaching Stockholder(s). (c) [intentionally omitted] (d) The Company shall have breached Section 6.06; the Company Board shall have effected a Change of Recommendation; at any time after the end of fifteen (15) Business Days following receipt of an Acquisition Proposal, the Company Board shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five (5) Business Days) after receipt of any written request to do so from Parent; or a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company Board recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within ten (10) Business Days after the commencement of such tender or exchange offer, the Company Board fails to recommend unequivocally against acceptance of such offer. (e) If (1) there has been a significant increase in the price of Parent Common Stock, as measured by the Parent Average Closing Price, (2) such increase is not proportionate relative to the Index, (3) Parent delivers written notice to the Company from Parent of its intention to terminate this Agreement within forty-eight (48) hours following the date of such breach event and (4) the Company does not elect to pursue an Increase Adjustment as set forth below; provided, however, that, if Parent effects a stock dividend, reclassification, recapitalization, stock split, combination, exchange of shares or failure similar transaction after the date hereof and prior to the date on which the Parent Average Closing Price is determined, the provisions of this Section 8.04(e) shall be appropriately adjusted so that such event does not in and of itself trigger a termination right on behalf of the Parent. For purposes hereof, the following terms have the following meanings: (i) A “significant increase” shall be deemed to have occurred if the Parent Average Closing Price is greater than the product of (i) the Parent Initial Price and (ii) 1.15, which is referred to as the “Maximum Adjustment Price”. (ii) An increase is not “proportionate relative to the Index” if the quotient obtained by dividing the Parent Average Closing Price by the earlier Parent Initial Price is greater than the quotient obtained by dividing the Final Index by the Initial Index and adding 0.15 to the quotient. Notwithstanding any increase in the price of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent Common Stock, as set forth in this Section 8.04(e), Parent shall not have the right be entitled to terminate this Agreement pursuant to this Section 7.04(b8.04(e) if (i) the Company elects, no later than the close of business on the second succeeding Business Day after the close of the Parent is then in breach of any of its representationsMeasuring Period, warranties, covenants or agreements under this Agreement in a manner to adjust the Exchange Ratio (an “Increase Adjustment”) such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to Exchange Ratio shall equal the number derived by multiplying the Exchange Ratio by the quotient obtained by dividing the Maximum Adjustment Price by the Parent Requisite Vote being obtainedAverage Closing Price or (ii) after the date hereof, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter publicly announces that it has entered into an Alternative Parent Acquisition Agreement a definitive agreement with respect to the acquisition of Parent by a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)third party.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifTime: (a) if prior to the receipt of the Parent Stockholder Approval, the Parent Board authorizes Parent, in full compliance with the terms of Directors this Agreement, including Section 6.11(b) hereof, to enter into a Parent Acquisition Agreement (other than an Acceptable Confidentiality Agreement) in respect of a Parent Superior Proposal; provided; that Parent shall have paid any amounts due pursuant to Section 8.6 hereof in accordance with the terms, and at the times, specified therein; and provided, further that in the event of such termination, Parent substantially concurrently enters into such Parent Acquisition Agreement; (b) if (i) a Company Adverse Recommendation Change shall have occurred, (ii) the Company shall have made entered into, or publicly announced its intention to enter into, a Company Change in Recommendation; providedAcquisition Agreement (other than an Acceptable Confidentiality Agreement), however(iii) the Company Board fails to reaffirm (publicly, that if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Company Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Company Takeover Proposal, (iv) a tender offer or exchange offer relating to Company Common Stock shall have been commenced by a Person unaffiliated with Parent will and the Company shall not have the right sent to terminate this Agreement its stockholders pursuant to Rule 14e-2 under the Securities Act, within ten (10) Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, or (v) the Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of actions specified in this Section 7.04(a) if the Company Requisite Vote has been obtained8.3(b); or (bc) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(athe conditions to the Closing of the Merger set forth in Section 7.2(a) or 6.02(b(b) would not be satisfied and and, in either such case, such breach or failure to be true is not curable orincapable of being cured by the Outside Date; provided, if curable, is not cured following notice to that Parent shall have given the Company from Parent of at least thirty (30) days written notice prior to such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Datetermination stating Parent’s intention to terminate this Agreement pursuant to this Section 8.3(b); provided that provided, further, Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.3(b) if Parent it is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated terminated, and the Mergers transactions contemplated by this Agreement may be abandoned abandoned, at any time prior to the First Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the Board of Directors of Parent ifCompany) by Parent: (a) if, prior to the Offer Closing (i) a Company Adverse Recommendation Change shall have occurred, (ii) the Company or the Company Board of Directors of (or any committee thereof) shall have approved, adopted, recommended, entered into, or publicly announced its intention to enter into, a Company Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) the Company shall have made a breached or failed to perform in any material respect any of the covenants and agreements set forth in Section 6.04, (iv) any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company Change in Recommendation; providedand the Company Board fails to reaffirm (publicly, however, that Parent will not have if so requested by Parent) the right to terminate this Agreement pursuant to this Section 7.04(aCompany Board Recommendation within the earlier of (x) if the Company Requisite Vote has not delivered a notice to Parent with respect to such Takeover Proposal pursuant to Section 6.04(d), five (5) Business Days after the date such Takeover Proposal is publicly disclosed by the Company, or (y) if the Company has delivered a notice to Parent with respect to such Takeover Proposal pursuant to Section 6.04(d), the expiration of the Notice Period (as may be extended pursuant to Section 6.04(d)), (v) any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Person making such Takeover Proposal (other than a Takeover Proposal described in clause (vi)) and the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within the earlier of (x) if the Company has not delivered a notice to Parent with respect to such Takeover Proposal pursuant to Section 6.04(d), ten (10) Business Days after the date such Takeover Proposal is publicly disclosed by the Person making such Takeover Proposal, or (y) if the Company has delivered a notice to Parent with respect to such Takeover Proposal pursuant to Section 6.04(d), the expiration of the Notice Period (as may be extended pursuant to Section 6.04(d)), (vi) a tender offer or exchange offer relating to Company Common Stock shall have been obtainedcommenced by a Person unaffiliated with Parent and the Company shall not have sent to its stockholders pursuant to Rule 14e-2 under the Securities Act, within ten (10) Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, or (vii) the Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of actions specified in this Section 8.03(a); or (b) there has been a breach of any representationif, warrantyprior to the Offer Closing, covenant or agreement made by the Company shall have breached or failed to perform any of its representations and warranties or covenants or other agreements set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied Agreement and such breach or failure to be true is not curable or, if curable, is not cured following notice perform would give rise to the failure of a condition set forth in subsection (c)(iii) of Exhibit A to occur or otherwise prevent the Company from Parent delivering the certificate contemplated by subsection (c)(vii) of Exhibit A (and in each case such breach or failure to perform is incapable of being cured by the Outside Date, or if curable, has not been cured within the earlier of (x) the 30th day following such Outside Date or 20 days after its receipt of written notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 daysthereof from Parent). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: Parent, at any time prior to the Effective Time, before or after Company Stockholder Approval, if (a) the Company shall have failed to comply in any material respect with any of the covenants or agreements contained in Article 2, Article 6 and Article 7 of this Agreement to be complied with or performed by the Company at or prior to such date of termination; provided, however, that if such failure to comply is capable of being cured prior to the End Date, such failure shall not have been cured within thirty (30) days of delivery to the Company of written notice of such failure, (b) there exists a breach or breaches of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 8.2(a) would not be satisfied; provided, however, that if such breach or breaches are capable of being cured prior to the End Date, such breaches shall not have been cured within thirty (30) days of delivery to the Company of written notice of such breach or breaches, (c) (i) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03this Agreement, enters to enter into an Alternative Parent Acquisition Agreement providing for a Parent binding written agreement concerning a transaction that constitutes a Superior Proposal with respect to the Parent and the Parent notifies Company in writing in accordance with Section 6.4 that did not result from it intends to enter into such an agreement, attaching the most current version of such agreement (or a description of all material breach of this Agreement terms and conditions thereof) to such notice and (iiiii) prior the Parent upon such termination pursuant to or concurrently with such termination, Parent this clause (c) pays to the Company in immediately available funds any the fees required to be paid pursuant to Section 7.05(c)9.5 or (d) a Company Triggering Event (as defined below) shall have occurred. For the purposes of this Agreement, a “Company Triggering Event” shall be deemed to have occurred if: (a) there shall have occurred a Change in Company Recommendation; (b) the Company shall have failed to include in the Proxy Statement/Prospectus the recommendation of the Board of Directors of the Company in favor of the adoption and approval of the Agreement and the approval of the Merger; (c) the Board of Directors of the Company or any committee thereof shall have approved or recommended any Superior Proposal with respect to the Company; or (d) a tender or exchange offer relating to more than 5% of the issued and outstanding securities of the Company shall have been commenced by a Person unaffiliated with Parent and the Company shall not have sent to its security holders pursuant to Rule 14e-2 promulgated under the Exchange Act, within ten (10) Business Days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company recommends rejection of such tender or exchange offer.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time Time, whether before or after the Shareholder Vote shall have been obtained, by action of the Board of Directors of Parent if: (a) (i) there has been an Adverse Recommendation, (ii) the Board Company or any of Directors of its Subsidiaries shall have entered into a Company Acquisition Agreement (other than, solely when permitted by Section 6.4(c), an Acceptable Confidentiality Agreement), (iii) the Company shall have made breached or failed to perform any of its material obligations set forth in Section 6.4 (including compliance in all respects with Section 6.4(f)), (iv) the Company Board fails to include in the Proxy Statement, when mailed, the Board Recommendation or to reaffirm (publicly, if so requested by Parent) the Board Recommendation within ten (10) Business Days after the date any Acquisition Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Acquisition Proposal, (v) a tender offer or exchange offer relating to Company Change in Recommendation; provided, however, that Common Stock shall have been commenced by a Person unaffiliated with Parent will and the Company shall not have the right sent to terminate this Agreement its shareholders pursuant to this Section 7.04(aRule 14e-2 under the Securities Act, within ten (10) if Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Board Recommendation and recommending that shareholders reject such tender or exchange offer, or (vi) the Company Requisite Vote has been obtainedor the Company Board (or any committee thereof) shall have formally resolved or publicly authorized or proposed to take any of the foregoing actions; or (b) there has been a breach of any other representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(a) or 6.02(bthe conditions set forth in Section 8.2(a) would not be satisfied satisfied, if occurring or continuing at the Effective Time, and such breach or failure to be true is not curable or, if curable, and correct is not cured by the earlier of (i) the End Date and (ii) thirty (30) calendar days following receipt of written notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days)failure. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement Plan may be terminated terminated, and the Mergers Merger may be abandoned abandoned, at any time prior to the First Effective Time by action of the Board board of Directors directors of Parent ifParent: (a) the Board if there has been a breach of Directors of any representation, covenant or agreement made by the Company shall have made in this Plan, or any such representation has become untrue after the date of this Plan, such that, individually or together with other such breaches or failures of a Company Change in Recommendationrepresentation to be true, Section 6.2(a) or Section 6.2(b) would not be satisfied and such breach or failure of a representation to be true is not curable by the Termination Date or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company; provided, however, that Parent will not have the right to terminate this Agreement Plan pursuant to this Section 7.04(aclause (a) will not be available if the Company Requisite Vote has been obtained; or (b) there has been a Parent is then in material breach of any representation, warranty, covenant or agreement made by the Company contained in this Agreement, or any such representation and warranty shall have become untrue after Plan; (b) if the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent Merger shall not have been consummated by the 12-month anniversary of the date hereof (the “Termination Date”); provided, however, that the right to terminate this Agreement Plan pursuant to this Section 7.04(bclause (b) will not be available if the failure of the Merger to be consummated by such date is due to the failure of Parent is then in breach of any of to perform its representations, warranties, covenants or agreements obligations under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).Plan; (c) at if (1) the board of directors of the Company submits this Plan to its shareholders without a recommendation for approval, otherwise withdraws or modifies (or publicly discloses its intention to withdraw or modify) its recommendation referred to in Section 5.2(b) in any time prior manner adverse to Parent, or approves, recommends, or otherwise declares advisable or proposes to or publicly discloses its intention to approve, recommend or declare advisable an Acquisition Proposal other than the Parent Requisite Vote being obtainedMerger, or otherwise effects a Change in Recommendation (or has resolved to take any of the foregoing actions), in each case, whether or not permitted under this Plan, (i2) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with Company materially breaches the terms of Section 5.03, 5.6 in any respect adverse to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and or (iii3) prior to or concurrently with such termination, Parent pays to the Company materially breaches its obligations under Section 5.2 by failing to call, give notice of, convene and hold the Company Stockholders Meeting in immediately available funds accordance with Section 5.2; (d) if the approval of the Company’s shareholders required by Section 6.1(a) shall not have been obtained at the Company Meeting; (e) if a tender offer or exchange offer for 15% or more of the outstanding shares of Company Common Stock is commenced (other than by Parent or a subsidiary thereof), and the board of directors of the Company recommends that the shareholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) business day period specified in Rule 14e-2(a) under the Exchange Act; or (f) if any fees required to be paid pursuant to Section 7.05(corder permanently restraining, enjoining or otherwise prohibiting consummation of the Merger or the Bank Merger, or the denial of any Requisite Regulatory Approval becomes final and non-appealable (whether before or after the approval by the shareholders of the Company).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time Merger Closing by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company or any of their respective Subsidiaries or Affiliates in this AgreementAgreement or any of the other Deal Agreements, or any such representation and representations or warranty shall have become untrue after the date of this Agreementor incorrect, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such which inaccuracy, breach or failure to perform (i) would reasonably be true expected to give rise to the failure of any Offer Condition set forth in clauses (ii) or (iii) of paragraph (d) of Annex I, and (ii) (A) is not curable or, capable of being cured prior to the End Date or (B) if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (x) thirty (30) calendar days following Parent’s delivery of written notice to the 30th day following Company of such notice breach and (y) the Termination End Date; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.3(a) if (x) Parent is then in material breach of any of its representations, warranties, covenants or agreements such that the Company has the right to terminate this Agreement pursuant to Section 9.2 or (y) the Offer Closing shall have occurred; (b) at any time prior to the Acceptance Time in the event that any of the following shall have occurred: (i) the Company Board (or any authorized committee thereof, including the Special Committee) has effected a Change in the Board Recommendation or (ii) the Company failed to include in the Schedule 14D-9, in each case, when mailed, the Recommendation (any such event contemplated by clauses (i) and (ii) of this Section 9.3(b), a “Triggering Event”); provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b9.3(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).Offer Closing shall have occurred; (c) at Wedbush Securities, Inc. sells or otherwise transfers for value, for the account of any time prior of the Specified Stockholders, an aggregate number of shares of Company Common Stock greater than or equal to the Parent Requisite Vote being obtained72,544 shares of Company Common Stock from and after June 4, 2014; (d) (i) if the Board of Directors of Company has not delivered to Parent authorizes Parentthe Audited Financial Statements and the Audit Opinion prior to 5:00 p.m. (Pacific time) on June 30, to the extent permitted by and subject to complying with the terms of Section 5.032014, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, or (ii) concurrently with the termination Audited Financial Statements are not identical to the Annual Financial Statements; or (e) The terms of this Agreementthe Crystal Loan Facility as executed by all of the parties thereto (i) related to (A) the total amount of loan commitments, Parent(B) the definitions of “Availability”, subject “Borrowing Base”, “Change of Control”, “Discharge of ABL Priority Obligations”, “Maximum Borrowing Availability” and “Obligations”, (C) collateral, (D) interest rate, (E) financial covenants, (F) availability blocks and deficiency reserves, (G) maturity date, (H) conversion/redemption/repayment/pre-payment/discharge features and related premiums and penalties, (I) commitment or other fees payable to complying with Crystal, (J) default or event of default or (K) any definitions used in any provisions relating to the foregoing or any component definition thereof, in the case of each of (A) through (K), deviate in any respect from such terms set forth in the form of the Crystal Loan Facility attached as Appendix 1.1 of the Company Disclosure Schedule, or (ii) related to all of the terms other than those enumerated in clause (i), collectively, deviates in any material respects from the form of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach Crystal Loan Facility attached as Appendix 1.1 of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Disclosure Schedule.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at At any time prior to the First Effective Time Time, this Agreement may be terminated by Parent, by action of the its Board of Directors of Parent Directors, if: (a) (i) there has been a breach by the Board Company of Directors any representation, warranty covenant or agreement set forth in this Agreement or if any representation or warranty of the Company shall have made a Company Change become untrue, in Recommendationeither case such that the conditions set forth in Section 6.3(a) would not be satisfied and (ii) such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given by Parent to the Company; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a7.4(a) shall not be available to Parent if the Company Requisite Vote has been obtained; or (b) there has been a it, at such time, is in material breach of any representation, warranty, covenant or agreement made by set forth in this Agreement such that the conditions set forth in Section 6.2(a) shall not be satisfied; (b) prior to obtaining the Company Requisite Vote, the Board of Directors of the Company shall have withdrawn, modified, withheld or changed, in a manner adverse to Parent, the Board's approval or recommendation of this AgreementAgreement or the Merger, or recommended a Company Superior Proposal, or resolved to do any such representation and warranty shall have become untrue after of the date foregoing; provided that Parent may not exercise this right of this Agreement, such that Sections 6.02(a) termination if it exercises the Option or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice the circumstances giving rise to the Company from right to terminate under this Section 7.4(b) are no longer in effect because the parties are proceeding on Modified Terms; or (c) prior to obtaining the Parent of such breach or failure by Requisite Vote, (i) Parent is the earlier of Withdrawing Party pursuant to Section 5.4(b), (xii) the 30th day following such notice Company had the right to exercise the Option and (yiii) the Termination Date; provided Company did not exercise the Option within the time in which it had a right to do so (it being understood that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.4(c) if unless and until Parent is then in breach of shall have paid the Company any of its representations, warranties, covenants or agreements amounts due under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days7.5(b)). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated by Parent and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent ifParent: (a) if a Change in Recommendation shall have occurred; (b) if (i) the Company Board (or any committee thereof) approves, endorses or recommends a Takeover Proposal, (ii) the Company enters into a contract or agreement relating to a Takeover Proposal (other than an Acceptable Confidentiality Agreement or an Other Confidentiality Agreement entered into in compliance with Section 6.2), (iii) the Company or the Company Board publicly announces its intention to do either of Directors the foregoing other than in accordance with the provisions of Section 6.2, (iv) there shall have occurred a material breach of Section 6.2 by any “executive officer” of the Company (as such term is defined in the Exchange Act) or by any of the Company’s Representatives acting at the express direction of or with the express authorization of the Company Board or any such executive officer, or (v) the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right failed to terminate this Agreement pursuant to this Section 7.04(a) if include the Company Requisite Vote has been obtainedRecommendation in the Proxy Statement distributed to the Company’s stockholders; or (bc) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company contained in this Agreement, Agreement or any such representation and or warranty of the Company shall have become untrue after the date of this Agreementinaccurate, in each case, such that Sections 6.02(athe conditions set forth in Section 7.2(a) or 6.02(b7.2(b) would not be satisfied and satisfied, provided, that, in the event that such breach by the Company or failure to be true is not such inaccuracies in the representations and warranties of the Company are curable or, if curable, is not cured following notice by the Company prior to the Company from End Date, then Parent of such breach or failure by shall not be permitted to terminate this Agreement pursuant to this Section 8.4(c) until the earlier to occur of (x) the 30th expiration of a thirty (30) day following period after delivery of written notice from Parent to the Company informing the Company of such notice and breach or inaccuracy, as applicable, or (y) the Termination Dateceasing by the Company to attempt to cure such breach or inaccuracy; and, provided further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(c) if (i) such breach or inaccuracy is cured within such thirty (30) day period, or (ii) Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach provision of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors representations and warranties of the Company shall not be true and correct or the Company shall have made breached or failed to perform any of its covenants or agreements contained in this Agreement, which failure to be true and correct, breach or failure to perform (A) has given rise or would give rise to the failure of a Company Change condition set forth in Recommendation; providedSection 7.1 or Section 7.2 and (B) cannot be cured by the Termination Date, howeveror if capable of being cured, that Parent will shall not have been cured within thirty (30) days following receipt by the right Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.04(a8.4(a) if and the Company Requisite Vote has been obtained; or basis for such termination (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curableearlier, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date); provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent it or Merger Sub is then in material breach of any of its representations, warranties, covenants or other agreements under this Agreement hereunder that would result in a manner such that the conditions to Closing set forth in Section 6.03(a) 7.1 or Section 6.03(b) would 7.3 not be satisfied (unless capable of being cured within 30 days).satisfied; or (cb) at any time prior the Company Board, whether or not permitted to the Parent Requisite Vote being obtaineddo so by this Agreement, shall have (i) if failed to include the Company Board Recommendation in the Proxy Statement, or effected a Change of Directors of Parent authorizes ParentRecommendation, or resolved to take any such action; (ii) authorized the extent permitted by and subject to complying with the terms of Section 5.03, Company to enter into an Alternative Parent Acquisition Agreement with respect Agreement; or (iii) failed to a Parent Superior Proposal that did not result from hold the Company Shareholder Meeting pursuant to Section 6.2 before ten (10) Business Days prior to the Termination Date unless such failure is caused by a material breach by Parent or Merger Sub of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to its covenants or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)other agreements hereunder.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent ifParent: (a) Prior to the Company's Stockholder Meeting, if (i) the Board of Directors of the Company shall have withdrawn or shall have amended or modified in a manner adverse to Parent its approval or recommendation of this Agreement, (ii) the Company shall have failed to include in the Prospectus/Proxy Statement the recommendation of the Company's Board of Directors in favor of the adoption and approval of this Agreement and the approval of the Merger, (iii) the Company's Board of Directors fails to reaffirm (publicly, if so requested) its recommendation in favor of the adoption and approval of this Agreement and the approval of the Merger within ten (10) calendar days after Parent requests in writing that such recommendation be reaffirmed (provided that the condition set forth in Section 7.3(d) is satisfied on the date of such request), (iv) the Company's Board of Directors or any committee thereof shall have approved or recommended any Acquisition Proposal not made by Parent, (v) a tender or exchange offer relating to the Company's securities shall have been commenced by a Person unaffiliated with Parent and the Company Change in Recommendation; provided, however, that Parent will shall not have the right sent to terminate this Agreement its securityholders pursuant to this Section 7.04(aRule 14e-2 promulgated under the Securities Act, within ten (10) if business days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company Requisite Vote has been obtained; or Company's Board of Directors recommends rejection of such tender or exchange offer, or (bvi) there has been a material breach by the Company of any of its obligations under Section 6.4 or Section 6.5. (b) If there has been a material breach by the Company of any representation, warranty, warranty or covenant or agreement made by of the Company set forth in this Agreement, Agreement (other than Section 6.4 or Section 6.5) or if any such representation and or warranty of the Company shall have become untrue after the date of this Agreementuntrue, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner either case such that the conditions set forth in Section 6.03(a7.2(a) or Section 6.03(b7.2(b) would not be satisfied (unless capable as of being cured within 30 days). (cthe time of such breach or as of the time such representation or warranty shall have become untrue; provided that if such breach by the Company or inaccuracy in its representation or warranty is curable through the exercise of reasonable efforts, then Parent may not terminate this Agreement under this Section 8.4(b) at any time prior to the date which is 30 calendar days after written notice of such breach or inaccuracy is given by Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Company.

Termination by Parent. This Unless the Offer shall have been consummated, this Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time Time, before or after the approval by holders of Shares, by action of the Board of Directors of Parent if: Parent, if (ax) (i) the Company shall have breached or failed to perform in any material respect any of its covenants or agreements hereunder (other than any immaterial covenants or agreements) or (ii) a representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall thereafter become inaccurate, except for such inaccuracies which, when taken together (in each case without regard to any qualification as to materiality or a Material Adverse Effect contained in the applicable representations and warranties) would not reasonably be likely to have a Material Adverse Effect, and, with respect to any such breach, failure to perform or inaccuracy that can be remedied, the breach, failure or inaccuracy is not remedied within 15 business days after the giving of written notice of such breach, failure or inaccuracy to the Company; or (y) the Board of Directors of the Company shall have made a Company Change withdrawn or modified in Recommendation; providedany manner adverse to Parent or Merger Sub its approval or recommendation of the Offer, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if or the Company Requisite Vote has been obtained; or (b) there has been a breach of Merger or shall have adopted or recommended any representation, warranty, covenant or agreement made by the Company in this AgreementAcquisition Proposal, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes the Company, upon request by Parent, shall fail to reaffirm such approval or recommendation within 10 business days after such request if an Acquisition Proposal is pending, or shall have resolved to do any of the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)foregoing.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent Purchase Time, if: (a) the Board Purchase Date has not occurred on or before the close of Directors of business on the Company Outside Date or the Offer shall have made a Company Change been terminated or expired in Recommendationaccordance with Section 1.1 without the Purchaser having purchased any Shares pursuant thereto; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if the failure of any of the Offer Conditions to be satisfied or the failure of Parent is then to have accepted for payment Shares pursuant to the Offer, or if the termination or expiration of the Offer, was primarily caused by Parent’s or Purchaser’s failure to perform in breach of all material respects its obligations under this Agreement; (b) prior to the Purchase Time, if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) this Agreement, which breach or Section 6.03(bfailure to perform (i) would give rise to the failure of a condition set forth in Paragraph 2(b) of Exhibit A and (ii) cannot be satisfied (unless cured by the Outside Date, or, if such breach or failure is capable of being cured, it has not been cured within 30 days).thirty (30) days following receipt by the Company of written notice of such breach or failure, provided, no event has previously occurred that entitled the Company to deliver a notice of breach pursuant to Section 8.3(c) unless such breach shall have been cured; or (c) at any time prior to the Parent Requisite Vote being obtainedPurchase Time, (i) if a Change of Board Recommendation shall have been effected in a manner adverse to Parent (it being agreed that issuance of a “stop, look and listen” letter shall not be deemed a Change of Board Recommendation) or the Board of Directors of Company shall have delivered to Parent authorizes Parenta Bid Deadline Notice in accordance with Section 6.3(d), to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, or (ii) concurrently with any person or “group” (as such term is used in Rule 13d-3 under the termination Exchange Act) (other than Parent or its Affiliates or any group that includes Parent or any Affiliate of this Agreement, Parent, subject to complying with ) shall have become the terms beneficial owner of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach fifty percent (50%) or more of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)outstanding Shares.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent Parent, after consultation with its outside legal advisors, if: (a) (i) there has been a breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 8.3(a) would not be satisfied and (ii) such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given by Parent to the Company; provided, however, that the right to terminate this Agreement pursuant to Section 9.4(a) shall not be available to Parent if it, at such time, is in breach of any representation, warranty, covenant or agreement set forth in this Agreement such that the conditions set forth in Section 8.2(a) shall not be satisfied; or (b) the Board of Directors of the Company shall have made withdrawn or materially modified, in a manner adverse to Parent, its approval or recommendation of the Merger or the Company Charter Amendment or recommended a Company Change Acquisition Proposal, or resolved to do so; or (c) prior to the Cutoff Date, (i) the Board of Directors of Parent has received a Parent Superior Proposal, (ii) in Recommendation; providedlight of such Parent Superior Proposal the Board of Directors of Parent shall have determined in good faith, however(A) after consultation with its outside legal advisors, that Parent proceeding with the Merger would be inconsistent with its fiduciary obligations and (B) that there is a substantial likelihood that the adoption by Parent's stockholders of this Agreement will not have be obtained by reason of the right existence of such Parent Superior Proposal, (iii) Parent has complied in all material respects with Section 7.3, (iv) Parent has previously paid the fee due under Section 9.5(b), (v) the Board of Directors of Parent concurrently approves, and Parent concurrently enters into, a binding definitive written agreement providing for the implementation of such Parent Superior Proposal and (vi) the Company is not at such time entitled to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date9.3(a); provided that Parent shall may not have the right to terminate this Agreement effect such termination pursuant to this Section 7.04(b9.4(c) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, and until (i) if the Board Company receives at least ten business days' prior written notice from Parent of Directors of Parent authorizes Parent, its intention to the extent permitted by effect such termination pursuant to this Section 9.4(c); and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreementduring such ten business day period, ParentParent shall, subject to complying with and shall cause its respective financial and legal advisors to, consider any adjustment in the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach and conditions of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to that the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)may propose.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) prior to obtaining Company Stockholder Approval: (i) a Company Adverse Recommendation Change shall have occurred; (ii) the Company shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company shall that its stockholders vote in favor of the Merger and the transactions contemplated hereby; (iii) a tender or exchange offer relating to any Shares will have made a been commenced and the Company Change in Recommendation; provided, however, that Parent will not have sent to its security holders, within ten business days after the right to terminate this Agreement pursuant to this Section 7.04(a) if commencement of such tender or exchange offer, a statement disclosing that the Company Requisite Vote has been obtainedrecommends rejection of such tender or exchange offer; or (iv) an Acquisition Proposal is publicly announced, and the Company fails to issue, within ten business days after such Acquisition Proposal is announced, a press release that reaffirms the recommendation of the Board of Directors of the Company that its stockholders vote in favor of the Merger and the transactions contemplated hereby; (b) the Company shall have breached any of its obligations under Section 6.3 in any material respect; or (c) if (i) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this AgreementAgreement such that the closing condition contained in Section 7.2(b) would not be satisfied, or (ii) there exists a breach of any such representation and or warranty shall have become untrue after of the date of Company contained in this Agreement, Agreement such that Sections 6.02(a) or 6.02(bthe closing condition contained in Section 7.2(a) would not be satisfied and, in the case of both (i) and (ii), such breach or failure to be true condition is not curable or, if curable, is not cured following notice to within 30 days after the Company receives written notice from Parent of such breach or failure by Parent, which notice shall state the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right Parent’s intention to terminate this Agreement pursuant to under this Section 7.04(b8.4(c) if Parent is then in breach and the basis of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Parent Board of Directors of Parent if: (a) the Board of Directors due to an occurrence or circumstance which would result in a failure to satisfy any of the Company Offer Conditions, (i) Purchaser shall have made a Company Change in Recommendationnot commenced the Offer within the time required by Section 1.1, (ii) subject to Section 1.1. hereof, the Offer shall have expired or been terminated without Purchaser having purchased any Shares pursuant thereto or (iii) Purchaser shall not have accepted for payment Shares pursuant to the Offer prior to August 31, 2003; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b9.4(a) if Parent is then in Parent’s or Purchaser’s breach of this Agreement was the cause of, or resulted in, the failure of any of its representationsthe Offer Conditions or the failure of the Parent to have accepted for payment Shares pursuant to the Offer, warrantiesand provided, covenants further, that, if the sole unsatisfied Offer Condition is paragraph 2(d) of Exhibit A to this Agreement, such termination may be effected by Parent only if the breach or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) failure to perform or Section 6.03(b) would comply is not be satisfied (unless capable of being cured (it being understood that a willful failure to comply with Section 7.3 is not capable of being cured) or, if such breach or failure is capable of being cured, has not been cured within 30 days).fifteen days following receipt by the Company of written notice of such breach or failure; or (cb) at any time prior to the Parent Requisite Vote being obtainedpurchase of Shares by Purchaser pursuant to the Offer, (i) if the Company Board shall have withdrawn or modified the recommendation of Directors of Parent authorizes Parentthe Company Board referred to in Section 1.2(a), to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, or (ii) concurrently with any person or “group” (as such term is used in Section 13(d)(3) of the termination Exchange Act) shall have become the beneficial owner (as that term is used in Rule 13d-3 under the Exchange Act) of this Agreement, Parent, subject to complying with a majority of the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)outstanding Shares.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent Purchase Time, if: (a) the Board due to an occurrence or circumstance which would result in a failure of Directors any of the Company Offer Conditions to be satisfied at any scheduled expiration of the Offer, (i) Purchaser shall not have commenced the Offer within the time required by Section 1.1, (ii) subject to Section 1.1 hereof, the Offer shall have made a Company Change in Recommendationexpired or been terminated without Purchaser having purchased any Shares pursuant thereto, or (iii) the Outside Date shall have occurred and Purchaser shall not have accepted for payment Shares pursuant to the Offer on or before the close of business on the Outside Date; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent is then in breach the failure of any of the Offer Conditions to be satisfied or the failure of Parent to have accepted for payment Shares pursuant to the Offer directly or indirectly resulted from or was caused by Parent’s or Purchaser’s failure to perform any of its representations, warranties, covenants or agreements obligations under this Agreement in a manner Agreement; provided, further, that, if the sole unsatisfied Offer Condition is Paragraph 2(d) of Exhibit A to this Agreement, such that termination may be effected by Parent prior to the conditions set forth in Section 6.03(a) Outside Date only if the breach or Section 6.03(b) would failure to perform or comply or to be true and correct is not be satisfied (unless capable of being cured within 30 days).ten (10) days following receipt by the Company of written notice of such breach or failure (it being understood that a failure to comply with Section 6.3 shall not be deemed capable of being cured) or, if such breach or failure is capable of being cured within such period, it has not been cured within such period; or (cb) at any time prior to the Parent Requisite Vote being obtainedPurchase Time, (i) if the a Change of Board of Directors of Parent authorizes ParentRecommendation shall have been effected, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, or (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to shall have intentionally breached Section 7.05(c)6.3.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the Board of Directors of Parent if:Company): (a) the Board of Directors of IF (i) a Company Adverse Recommendation Change shall have occurred, (i) the Company shall have made entered into, or publicly announced its intention to enter into, a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Acquisition Agreement pursuant to this Section 7.04(a(other than an Acceptable Confidentiality Agreement) (ii) if the Company Requisite Vote has been obtainedshall have breached or failed to perform in any material respect any of the covenants and agreements set forth in Section 5.04 (iii) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (“10”) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal (iv) Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of actions specified in this ; or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Merger set forth in Section 6.02(a) or Section 6.02(b) ), as applicable, would not be satisfied and and, in either such case, such breach or failure to be true is not curable or, if curable, is not incapable of being cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination End Date; provided that Parent shall not have given the right Company at least 15 days written notice prior to such termination stating Parent's intention to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifClosing: (a) the Board of Directors of If: (i) a Company Adverse Recommendation Change shall have occurred or the Company shall have made a approved or adopted, or recommended the approval or adoption of, any Company Change Acquisition Agreement (it being understood and agreed that any written notice that the Company has provided information or taken any other action that it is permitted to provide or take pursuant to Section 5.03(b) or Section 5.03(c) shall not, in Recommendation; providedand of itself, however, that result in Parent will not have the right to terminate this Agreement or Merger Sub having any termination rights pursuant to this Section 7.04(a7.03(a)); and (ii) if the Company Requisite Vote has shall have entered into a definitive agreement relating to a Takeover Proposal; (b) the Company shall have breached any of its covenants in Section 5.03 or Section 5.04 and, in the case of a breach of Section 5.04, such breach is continuing and incapable of being cured by the End Date, or, if capable of being cured by the End Date, shall not have been obtainedcured prior to the earlier of (x) thirty (30) Business Days after written notice thereof is given by Parent to the Company, or (y) the End Date; or (bc) if there has been a breach of any representation, warranty, covenant covenant, or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Merger set forth in Section 6.02(a) or Section 6.02(b) ), as applicable, would not be satisfied and (other than conditions that by their nature are to be satisfied at the Closing, but which shall then be capable of satisfaction if the Closing were to occur on such date) and, such breach or failure to be true is not curable continuing and incapable of being cured by the End Date, or, if curablecapable of being cured by the End Date, is shall not have been cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xi) thirty (30) Business Days after written notice thereof is given by Parent to the Company or (ii) the 30th day following such notice and (y) the Termination End Date; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.03(c) if there has been any material breach by Parent is then in breach or Merger Sub of any of its representationsrepresentation, warrantieswarranty, covenants covenant, or agreements under this Agreement in a manner obligation hereunder and such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would breach is continuing and has not be satisfied (unless capable of being cured within 30 days)been cured. (cd) at any time prior to If, since the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach date of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for there shall have been a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Material Adverse Effect.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by written notice at any time prior to the First Effective Time by Parent, by action of the Board its board of Directors of Parent ifdirectors: (a) if the Board board of Directors directors of the Company or the Independent Committee shall have (i) made a Change of Company Change in Recommendation; provided, however, that Parent will not have the right Position or publicly announced its intention to terminate this Agreement pursuant do so or (ii) failed to this Section 7.04(a) if include the Company Requisite Vote has been obtainedPosition in the Proxy Statement; or (b) (i) if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this AgreementAgreement (except the covenants and agreements in Section 6.6), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(athe conditions set forth in Section 7.2(a) or 6.02(bSection 7.2(b) would not be satisfied and such breach or failure to be true is not curable curable, or, if curable, is not cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xA) thirty calendar days after written notice (which shall specify the 30th day following nature of such notice breach and Parent’s intention to terminate this Agreement if such breach is not cured) thereof is given by Parent to the Company or (yB) five Business Days prior to the Termination Date; provided or (ii) the Company shall have breached in any material respect its obligations under Section 6.6 such that the conditions set forth in Section 7.2(b) would not be satisfied and such breach is not curable, or if curable, is not cured prior to the earlier of (A) ten Business Days after written notice of such breach, or (B) five Business Days prior to the Termination Date; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(b) if Parent it is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a7.1, Section 7.3(a) or Section 6.03(b7.3(b) would not be satisfied (unless capable of being cured within 30 days)satisfied. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifTime: (a) the Board of Directors of if the Company shall have made a Company Change breached or failed to perform in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this any material respect any of its covenants and agreements set forth in Section 7.04(a) if the Company Requisite Vote has been obtained; or5.04; (b) if there has shall have been a breach of any representation, warranty, covenant covenant, or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Transactions set forth in Section 6.02(a) or Section 6.02(b) ), as applicable, would not be satisfied and and, in either such case, such breach or failure to be true is not curable orincapable of being cured by the End Date; provided, if curable, is not cured following notice to that Parent shall have given the Company from Parent of at least 30 days written notice prior to such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Datetermination stating Parent’s intention to terminate this Agreement pursuant to this Section 7.03(b); provided further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.03(b) if a Parent Entity is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant, or agreements under this Agreement in a manner such obligation hereunder that the conditions would cause any condition set forth in Section 6.03(a) or Section 6.03(b) would not to be satisfied satisfied; provided, further, that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 7.03(b) as a result of such particular breach or inaccuracy until the expiration of a 30-day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and its intention to terminate pursuant to this Section 7.03(b) (unless capable it being understood that this Agreement shall not terminate pursuant to this Section 7.03(b) as a result of being such particular breach or inaccuracy if such breach by the Company is cured within 30 daysprior to such termination becoming effective).; (c) at if all of the conditions set forth in Section 6.01 and Section 6.03, as applicable, have been satisfied (other than any time prior condition the failure of which to be satisfied has been principally caused by the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement by the Company or any of its Affiliates and (iii) prior conditions that, by their nature, are to or concurrently with such be satisfied at Closing and which were, at the time of termination, Parent pays to capable of being satisfied) and the Company in immediately available funds any fees required has failed to be paid pursuant fulfill its obligation and agreement herein to Section 7.05(c)consummate the Closing within three (3) Business Days following written notice of such satisfaction from Parent and that Parent is ready, willing and able to consummate the Transactions; or (d) if the Written Consent shall not have been obtained by 11:59 p.m. Minneapolis, Minnesota time on the second Business Day following the date hereof.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board board of Directors directors of the Company shall have (i) failed to include the Company Recommendation in the Proxy Statement or (ii) made a Change of Recommendation; (b) at any time following receipt of an Acquisition Proposal, the board of directors of the Company Change in Recommendation; provided, however, that Parent will not shall have the right failed to terminate reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within six (6) business days after receipt of any written request to do so from Parent); (c) a tender offer or exchange offer for outstanding Shares shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and, prior to the earlier of (i) the day prior to the date of the Stockholders Meeting or the day prior to the date of any adjournment, recess or postponement of the Stockholders Meeting, as the case may be, and (ii) eleven (11) business days after the commencement of such tender or exchange offer pursuant to this Section 7.04(a) if Rule 14d-2 under the Exchange Act, the board of directors of the Company Requisite Vote has been obtainedfails to recommend unequivocally against acceptance of such offer; or (bd) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aSection 7.2(a) or 6.02(b7.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the 30th day following such notice Company and (yii) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to before the First Effective Time by action of the Board of Directors of Parent ifTime: (a) prior to the Board of Directors receipt of the Company Requisite Parent Vote, if and only if prior to or substantially concurrent with such termination, (i) Parent shall have made a paid the Parent Termination Fee to the Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a7.6 and (ii) Parent substantially concurrently with such termination enters into a definitive agreement with respect to the Superior Proposal that did not result from a material breach of Section 5.4 and that remained a Superior Proposal following Parent’s compliance with the provisions set forth in Section 5.4; (b) if the Company Requisite Vote has been obtained; or (b) there has been a breach breaches any of any representationits representations, warrantywarranties, covenant covenants or agreement made by the Company agreements contained in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(bwhich breach (i) would give rise to the failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) cannot be satisfied and such breach or failure to be true is not curable cured by the Termination Date, or, if curable, is has not been cured following notice to by the Company from Parent of such breach or failure by within the earlier of (xi) 30 days after the 30th day following Company’s receipt of written notice of such notice breach from Parent and (yii) three (3) Business Days prior to the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.4(b) if any Parent Entity is then in breach of any of its representations, warranties, covenants or agreements under contained in this Agreement that would result in a manner such that the conditions to Closing set forth in Section 6.1 or Section 6.3 not to be satisfied; or (c) if all of the conditions set forth in Section 6.03(a) or 6.1 and Section 6.03(b) would not 6.3 have been satisfied (other than any condition the failure of which to be satisfied (unless capable of being cured within 30 days). (c) at any time prior to has been principally caused by the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement by the Company or any of its Affiliates and (iii) prior conditions that, by their nature, are to or concurrently with such be satisfied at Closing and which were, at the time of termination, Parent pays to capable of being satisfied) and the Company in immediately available funds any fees required has failed to be paid pursuant fulfill its obligation and agreement herein to Section 7.05(c)consummate the Closing within three (3) Business Days following written notice of such satisfaction from Parent and that Parent is ready, willing and able to consummate the Transactions.

Termination by Parent. This Agreement may be terminated by Parent upon written notice to the Company and the Mergers Merger may be abandoned at any time prior to the First Effective Time by Time, before or after any action of the Board of Directors of Parent Parent, if: (a) the Company shall have breached or failed to perform any of the representations, warranties, covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) the conditions set forth in Section 7.3(a) or (b) would not be satisfied as of the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within twenty (20) business days following receipt by the breaching party of notice of such failure to comply; (b) the Board of Directors of the Company or any committee thereof, shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Merger or this Agreement, (ii) the Company shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company in favor of approval to the Merger and this Agreement, (iii) in connection with a Rule 14d-9 disclosure, the Board of Directors of the Company shall have made taken any action other than a Company Change in Recommendation; providedrejection of a Rule 14d-9 proposal, however, that Parent will not have (iv) the right to terminate this Agreement pursuant to this Section 7.04(a) if Board of Directors of the Company Requisite Vote has been obtained; or or any committee thereof shall have recommended any Company Acquisition Proposal, (bv) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants officers or agreements under this Agreement directors shall have entered into discussions or negotiations in a manner such that violation of Section 6.3 or (vi) the Board of Directors of the Company or any committee thereof shall have resolved to do any of the foregoing or (vii) any Company Acquisition Proposal is consummated or an agreement with respect to any Company Acquisition Proposal is signed; (c) the conditions set forth in Section 6.03(a7.3(g) or Section 6.03(b) would have not been satisfied, and will not be satisfied (unless capable of being cured within 30 days). (c) at any time satisfied, prior to the Outside Date, in Parent's reasonable judgment and if Parent Requisite Vote being obtained, (i) if is obligated to pay the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the $1,200,000 termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays fee to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)8.5(c) hereof, Parent shall concurrently pay such termination fee to the Company.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by Parent by action of the Parent Board of Directors of Parent if: (a) the Board a Change of Directors of the Company Recommendation shall have made occurred; provided that, following such a Change of Company Change in Recommendation; provided, however, that Parent will not shall no longer have the right to terminate this Agreement pursuant to this Section 7.04(a9.4(a) if after the Requisite Company Requisite Vote has Stockholder Approvals have been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreementhereof, such that Sections 6.02(aSection 8.2(a) or 6.02(b8.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the 30th day following such notice Company and (yii) one (1) Business Day before the Termination DateOutside Date (whether before or after the Requisite Company Stockholder Approvals or the Parent Stockholder Approval have been obtained pursuant to Section 8.1(a) or Section 8.1(b), as applicable); provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b9.4(b) if Parent is then in breach of this Agreement such that any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a8.3(a) or Section 6.03(b8.3(b) would not be satisfied (unless capable of being cured within 30 days)satisfied. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: if (a) the Board board of Directors directors of the Company shall have made a Change of Recommendation, (b) the Company Change shall have failed to take a vote of shareholders on the Merger in Recommendation; providedthe time contemplated by the Agreement, howeverand, in any event, prior to the Termination Date (unless such failure is due to a permanent injunction of a Governmental Entity that is final and non-appealable), (c) a tender offer or exchange offer for outstanding shares of Company Shares shall have been publicly disclosed (other than by Parent will not have or an Affiliate of Parent), and at any time after the right to terminate this Agreement commencement of such tender or exchange offer pursuant to this Section 7.04(a) if Rule 14d-2 under the Exchange Act, the board of directors of the Company Requisite Vote has been obtained; or makes a statement with respect to such offer pursuant to Rule 14d-9 of the Exchange Act (bother than Rule 14d-9(f) of the Exchange Act) (it being understood that a “stop, look and listen” statement made pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed a Change of Recommendation) and fails to recommend that shareholders of the Company not tender any of their shares into such offer or (d) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aSection 7.2(a) or 6.02(bSection 7.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (x) 30 calendar days after written notice thereof is given by Parent to the 30th day following such notice Company and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time Time, whether before or after the Company Stockholder Approval, by action written notice of the Board of Directors of Parent ifParent: (ai) (A) if the Company has breached or failed to perform any of its covenants or other agreements contained in this Agreement (other than as set forth in Section 7.1(c)(ii)) to be complied with by the Company such that the closing condition set forth in Section 6.2(b) would not be satisfied or (B) there exists a breach of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 6.2(a) would not be satisfied and, in the case of both (A) and (B), such breach or failure to perform (1) is not cured within 30 days after receipt of written notice thereof or (2) is incapable of being cured by the Company by the Outside Date; or (ii) if (A) the Board of Directors of the Company shall have or any committee thereof has made a Company Adverse Recommendation Change or (B) the Company has breached Section 4.2 in Recommendationany material respect or breached the provisions of Section 5.1(b) (other than immaterial breaches of the first sentence thereof), (C) within ten Business Days of the public announcement of a Company Takeover Proposal, the Board of Directors of the Company fails to reaffirm (publicly, if so requested by Parent) its recommendation in favor of the adoption of this Agreement and the approval of the Merger, or (D) within ten Business Days after a tender or exchange offer relating to securities of the Company has first been published or announced, the Company shall not have sent or given to the Company stockholders pursuant to Rule 14e-2 promulgated under the Securities Act a statement disclosing that the Board of Directors of the Company recommends rejection of such tender or exchange offer; provided, however, that the ten Business Day time period set forth in the foregoing clauses (C) and (D) may be extended by not more than five Business Days in the aggregate upon written notice by the Company to Parent will not have that such Company Takeover Proposal, such tender or exchange offer relating to the right securities of the Company or the consideration to terminate this Agreement be paid by Parent pursuant to this Section 7.04(a) if Agreement, as the Company Requisite Vote case may be, has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time materially revised prior to the Parent Requisite Vote being obtained, (i) if the Board expiration of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)10 Business Day time period.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent Purchase Time, if: (a) the Board due to a failure of Directors any of the Company Offer Conditions to be satisfied at any scheduled expiration of the Offer, (i) subject to Section 1.1 hereof, the Offer shall have made a Company Change expired or been terminated in Recommendationaccordance with its terms without Purchaser having purchased any Shares pursuant thereto, or (ii) the Outside Date shall have occurred and Purchaser shall not have accepted for payment Shares pursuant to the Offer on or before the close of business on the Outside Date; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent is then in Parent’s or Purchaser’s breach of this Agreement was directly or indirectly the cause of, or directly or indirectly resulted in, the failure of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not Offer Conditions to be satisfied (unless or the failure of Parent to have accepted for payment Shares pursuant to the Offer; provided, further, that, if the sole unsatisfied Offer Condition is Paragraph 2(d) of Exhibit A to this Agreement, such termination may be effected by Parent prior to the Outside Date only if the breach or failure to perform or comply is not capable of being cured within 30 days).25 days following receipt by the Company of written notice of such breach or failure (it being understood that a willful failure to comply with Section 6.3 shall not be deemed capable of being cured) or, if such breach or failure is capable of being cured within such period, it has not been cured within such period; or (cb) at any time prior to the Parent Requisite Vote being obtainedPurchase Time, (i) if the a Change of Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this AgreementRecommendation shall have been effected, (ii) concurrently with the termination of this AgreementCompany shall have willfully breached Section 6.3 in any respect, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and or (iii) prior to any person or concurrently with “group” (as such termination, Parent pays to term is used in Section 13(d)(3) of the Company Exchange Act) shall have become the beneficial owner (as that term is used in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Rule 13d-3 under the Exchange Act) of 15% or more of the outstanding Shares.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent Purchase Time, if: (a) the Board due to an occurrence or circumstance which would result in a failure of Directors any of the Company Offer Conditions to be satisfied at any scheduled expiration of the Offer, (i) Purchaser shall not have commenced the Offer within the time required by Section 1.1, (ii) subject to Section 1.1 hereof, the Offer shall have made a Company Change in Recommendationexpired or been terminated without Purchaser having purchased any Shares pursuant thereto, or (iii) the Outside Date shall have occurred and Purchaser shall not have accepted for payment Shares pursuant to the Offer on or before the close of business on the Outside Date; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent is then in breach the failure of any of the Offer Conditions to be satisfied or the failure of Parent to have accepted for payment Shares pursuant to the Offer directly or indirectly resulted from or was caused by Parent’s or Purchaser’s failure to perform in all material respects any of its representations, warranties, covenants or agreements obligations under this Agreement in a manner Agreement; provided, further, that, if the sole unsatisfied Offer Condition is Paragraph 2(c) of Exhibit A to this Agreement, such that termination may be effected by Parent prior to the conditions set forth in Section 6.03(a) Outside Date only if the breach or Section 6.03(b) would failure to perform or comply or to be true and correct is not be satisfied (unless capable of being cured within 30 daysthirty (30) days following receipt by the Company of written notice of such breach or failure or, if such breach or failure is capable of being cured within such period, it has not been cured within such period (it being understood that any intentional breach of Section 6.3 shall be deemed incapable of cure).; or (cb) at any time prior to the Parent Requisite Vote being obtainedPurchase Time, (i) if the a Change of Board of Directors of Parent authorizes ParentRecommendation shall have been effected, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, or (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to shall have intentionally breached Section 7.05(c)6.3.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifTime: (a) the Board of Directors of if (i) a Company Adverse Recommendation Change shall have occurred, (ii) the Company shall have made entered into, or publicly announced its intention to enter into, a Company Change in Recommendation; providedAcquisition Agreement (other than an Acceptable Confidentiality Agreement), however(iii) the Company Board fails to reaffirm (publicly, that if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (iv) a tender offer or exchange offer relating to Company Common Stock shall have been commenced by a Person unaffiliated with Parent will and the Company shall not have the right sent to terminate this Agreement its stockholders pursuant to Rule 14e-2 under the Securities Act, within ten (10) Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, or (v) the Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of actions specified in this Section 7.04(a) if the Company Requisite Vote has been obtained8.3(a); or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(athe conditions to the Closing of the Merger set forth in Section 7.2(a) or 6.02(b(b) would not be satisfied and and, in either such case, such breach or failure to be true is not curable orincapable of being cured by the Outside Date; provided, if curable, is not cured following notice to that Parent shall have given the Company from Parent of at least thirty (30) days written notice prior to such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Datetermination stating Parent’s intention to terminate this Agreement pursuant to this Section 8.3(b); provided that provided, further, Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.3(b) if Parent it is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board board of Directors directors of Parent ifParent: (a) the Board of Directors of the if a Company Triggering Event (as hereinafter defined) shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtainedoccurred; or (b) if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and or warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(athe condition set forth in Section 8.2(a) or 6.02(b) 8.2(b), as the case may be, would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following within thirty (30) days after written notice thereof is given by Parent to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination DateCompany; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant by Parent shall not be available to this Section 7.04(b) Parent if Parent or Merger Sub is then at that time in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination . For purposes of this Agreement, Parenta “Company Triggering Event” shall be deemed to have occurred if: (A) the Company Board shall have failed to recommend approval of the Company Voting Proposal in the Proxy Statement, subject a Change in Company Recommendation shall have occurred or the Company Board shall have resolved to complying with make a Change in Company Recommendation; (B) the terms Company Board shall have recommended to the stockholders of Section 5.03, the Company a Competing Transaction or shall have publicly announced it intends to do so or shall have entered into any Alternative Acquisition Agreement which enters into an Alternative any Competing Transaction; (C) a tender offer or exchange offer for the outstanding shares of capital stock of the Company is commenced (other than pursuant to the transactions contemplated by this Agreement), and the Company Board fails to recommend against acceptance of such tender offer or exchange offer by its stockholders; (D) the Company Board, upon request of Parent Acquisition Agreement providing following receipt of a proposal or offer for a Parent Superior Proposal that did not result from a material breach Competing Transaction, fails to reaffirm the approval or recommendation of the Merger and this Agreement and as promptly as practicable, but in any event within seven (iii7) prior to or concurrently with Business Days, after such termination, Parent pays to request; or (E) the Company in immediately available funds or any fees required to be paid pursuant to of its officers, directors, representatives or agents knowingly and materially breaches its obligations under Section 7.05(c)7.2 or Section 7.5.

Termination by Parent. This Agreement may be terminated terminated, and the Mergers Transactions may be abandoned at any time prior to the First Effective Time abandoned, by action of the Board of Directors of Parent Parent, if: (a) due to an occurrence or circumstance that would result in a failure to satisfy any condition set forth in Annex A hereto, Purchaser shall have failed to commence the Board Offer within five Business Days following the date of Directors this Agreement, unless such failure shall have been caused by or resulted from the failure of Parent or Purchaser to perform, in any material respect, any of their material covenants or agreements contained in this Agreement, or the material breach by Parent or Purchaser of any of their material representations or warranties contained in this Agreement; or (b) prior to the purchase of Shares pursuant to the Offer by Purchaser, the Company shall have made breached any representation, warranty, covenant or other agreement contained in this Agreement which (A) would give rise to the failure of a condition set forth in paragraph (e) or (f) of Annex A hereto and (B) is incapable of being cured or is not cured within 30 days after notice in writing to the Company Change by Parent; or (c) prior to the purchase of Shares pursuant to the Offer by Purchaser, (i) the Company shall have materially breached its obligations under this Agreement by failing to file the Schedule 14D-9 as provided in RecommendationSection 1.2 hereof; provided, however, that Parent will may not have the right to terminate this Agreement pursuant to this Section 7.04(a9.3(c) if Parent or Purchaser is at such time in material breach of its obligations under this Agreement; (ii) the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after failed to include in the date Schedule 14D-9 or the Proxy Statement the Board’s approval or recommendation of this Agreement, such that Sections 6.02(a) the Offer or 6.02(b) would not be satisfied and such breach or failure to be true is not curable orthe Merger, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (xiii) the 30th day following such notice and Board or any committee thereof shall have withdrawn or materially modified or changed (yincluding by amendment of the Schedule 14D-9) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach recommendation of this Agreement, the Offer or the Merger in a manner adverse to Parent or Purchaser; (iiiv) concurrently the Board or any committee thereof shall have recommended or approved any Acquisition Proposal; (v) the Board or any committee thereof shall have approved any transaction (other than the Transactions) to render inapplicable to such transaction any restrictive provision of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover Law (including, without limitation, Section 203 of the DGCL) or any restrictive provision of any applicable anti-takeover provision in the Company’s certificate of incorporation (including, without limitation, Article Eleventh and Article Fourteenth thereof) or bylaws, (vi) any Person other than Parent or Purchaser shall have become the beneficial owner of more than 25% of the outstanding Shares; or (vii) the Company shall have entered into any agreement with the termination of this Agreement, Parent, subject respect to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent any Superior Proposal that did not result from a material breach in accordance with Section 7.2 of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Agreement.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time (or, in the case of Section 7.1(c)(i)(B) below if a Prepayment Request has been made, only prior to the Prepayment Notice Date), whether before or after the Company Stockholder Approval, by action written notice of Parent (with any termination by Parent also being an effective termination by Merger Sub and Merger LLC): (i) (A) if the Company has breached or failed to perform any of its covenants or other agreements contained in this Agreement (other than as set forth in Section 7.1(c)(ii)) to be complied with by the Company such that the closing condition set forth in Section 6.2(b) would not be satisfied or (B) there exists a breach of any representation or warranty of the Board Company contained in this Agreement such that the closing condition set forth in Section 6.2(a) would not be satisfied and, in the case of Directors both (A) and (B), such breach or failure to perform (1) is not cured within thirty (30) days after receipt of Parent if:written notice thereof or (2) is incapable of being cured by the Company by the Outside Date; or (aii) (A) if the Board of Directors of the Company shall have or any committee thereof has made a Company Change in Recommendation; providedAdverse Recommendation Change, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a(B) if the Company Requisite Vote has been obtained; or breached the provisions of Section 4.2 or breached the provisions of Section 5.1(b) (b) there has been a breach other than immaterial breaches of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 daysfirst sentence thereof). (c) at any time prior to the Parent Requisite Vote being obtained, (iC) if within ten (10) Business Days of the public announcement of a Company Takeover Proposal, the Board of Directors of Parent authorizes the Company fails to reaffirm (publicly, if so requested by Parent, to ) its recommendation in favor of the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach adoption of this Agreement, or (iiD) concurrently with within ten (10) Business Days after a tender or exchange offer relating to securities of the termination of this AgreementCompany has first been published or announced, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did Company shall not result from a material breach of this Agreement and (iii) prior to have sent or concurrently with such termination, Parent pays given to the Company in immediately available funds any fees required to be paid stockholders pursuant to Section 7.05(c)Rule 14e-2 promulgated under the Securities Act a statement disclosing that the Board of Directors of the Company recommends rejection of such tender or exchange offer.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time Time, whether before or after the adoption of this Agreement by the Company Requisite Vote, by action of the Board board of Directors directors of Parent Parent, if: (a) the Board of Directors of the Company a Triggering Event shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; oroccurred; (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(athe conditions set forth in Section 8.2(a) or 6.02(b8.2(b) would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations or warranties as of the date of this Agreement or as of any subsequent date: (i) all materiality and similar qualifications limiting the scope of such representations or warranties shall be disregarded; and (ii) any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded) and such breach or failure to be true condition is not curable or, if curable, is not cured following within 30 days after written notice thereof is given by Parent to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination DateCompany; provided provided, however, that Parent shall not have the right be permitted to terminate this Agreement pursuant to this Section 7.04(b9.4(b) if Parent is then in breach in any material respect of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).Agreement; (c) at any time prior to a Company Material Adverse Effect shall have occurred on or after the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach date of this Agreement, ; or (iid) concurrently with if a Specified Default Event shall have occurred on or after the termination date of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated by Parent and the Mergers Sale may be abandoned at any time prior to the First Effective Time Closing, whether before or after the Requisite Parent Vote has been obtained except as otherwise expressly noted if (with any termination by action of the Board of Directors of Parent if:also being an effective termination by Seller): (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote Buyer has been obtained; or (b) there has been a breach of breached any representation, warranty, covenant or agreement made by the Company Buyer in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections Section 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (x1) thirty (30) days after written notice thereof is given by Parent to Buyer and (2) the 30th day following such notice and (y) the Termination Outside Date; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) and abandon the Sale if Parent it or Seller is then in breach of any of its their respective representations, warranties, covenants or other agreements under this Agreement in a manner such that the conditions set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days).satisfied; or (cb) at any time prior to the time the Requisite Parent Requisite Vote being is obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, in order to enter into an Alternative Parent Acquisition Agreement with respect to providing for a Parent Superior Proposal in accordance with Section 5.01(c); provided, that the right to terminate this Agreement pursuant to this Section 7.03(b) shall not be available unless (i) such termination did not result from a material breach by Parent or Seller of this Agreement, Section 5.01 and (ii) Parent shall have paid or shall concurrently with pay to Buyer the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid Termination Fee pursuant to Section 7.05(c7.05(b)(2).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) at any time prior to the Effective Time, whether before or after the approval by the shareholders of Parent referred to in Section 7.1(a), (i) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate withdrawn or adversely modified its approval or recommendation of this Agreement pursuant or failed to reconfirm its recommendation of this Section 7.04(a) if the Company Requisite Vote has been obtained; or Agreement within five business days after a written request by Parent to do so or (bii) there has been a material breach by the Company of any representation, warranty, covenant or agreement made by the Company contained in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such Agreement that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following within 30 days after written notice to the Company from Parent of such breach or failure is given by Parent to the earlier of Company; or (xb) (i) the 30th day following such notice and (y) the Termination Date; provided that Parent Requisite Vote shall not have the right to terminate this Agreement pursuant to this Section 7.04(bbeen obtained, (ii) if Parent is then not in breach of any of its representations, warranties, covenants or agreements under the terms of this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtainedAgreement, (iiii) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03this Agreement, to enter into an Alternative Parent Acquisition Agreement with respect to a binding written agreement concerning a transaction that constitutes a Parent Superior Adverse Proposal and Parent notifies the Company in writing that did not result from a material breach of this Agreementit intends to enter into such an agreement, (iiiv) concurrently with the termination Company does not make within five business days of this Agreement, receipt of Parent, subject 's notification of its intention to complying with the terms of Section 5.03, enters enter into an Alternative Parent Acquisition Agreement providing a binding agreement for a Parent Superior Proposal that did not result Adverse Proposal, an offer the Board of Directors of Parent determines, in good faith after consultation with its financial advisors, is at least as favorable, from a material breach financial point of this Agreement view, to the shareholders of Parent as the Parent Adverse Proposal, and (iiiv) Parent prior to or concurrently with such termination, Parent termination pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)8.5. Parent agrees (x) that it will not enter into any binding agreement referred to in clause (iii) of the last preceding sentence until at least the sixth business day after it has provided the notice to the Company required thereby and (y) to notify the Company promptly if its intention to enter into a written agreement referred to in its notification shall change at any time after giving such notification.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time Time, by action of the Board of Directors of Parent Parent, if: (a) the Company Board of Directors of or the Company Special Committee shall have made a Company Change in withdrawn or adversely qualified or modified the Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or; (b) there has been a breach of any representation, warranty, covenant representations or agreement warranties made by the Company in this Agreement, Agreement shall fail to be true or any such representation and warranty shall have become untrue correct on or after the date execution of this Agreement, such that Sections 6.02(a(i) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b8.2(a) would not be satisfied satisfied, and (unless ii) such failures are not cured, or are not reasonably capable of being cured within 30 days).cured, by (A) in the case of a failure to be true and correct of a Category I Specified Representation or a Category II Specified Representation, the date that is thirty (30) days after the earlier of (1) the date the Company becomes aware of the existence of the failure to be true and correct and (2) the date the Company receives written notice from Parent of Parent’s belief that a failure to be true and correct has occurred, which notice explains in reasonable detail the basis for such belief, or (B) in the case of all other failures of a representation or warranty of the Company to be true and correct, the Termination Date; (c) at any time prior to covenants or agreements made by the Parent Requisite Vote being obtained, Company in this Agreement shall have been breached after the execution of this Agreement (i) if such that the Board of Directors of Parent authorizes Parentconditions set forth in Section 8.2(b) would not be satisfied, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with such breaches are not cured, or are not reasonably capable of being cured, by the termination date that is thirty (30) days after the earlier of this Agreement, Parent, subject to complying with (1) the terms date the Company becomes aware of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material the existence of the breach of this Agreement and (iii2) prior to or concurrently with such termination, Parent pays to the date the Company receives written notice from Parent of Parent’s belief that a breach has occurred, which notice explains in immediately available funds any fees required to be paid pursuant to Section 7.05(c)reasonable detail the basis for such belief; or (d) if a Company Material Adverse Effect occurs and such Company Material Adverse Effect is not cured within thirty (30) days after the earlier of (x) the date the Company becomes aware of the existence of the Company Material Adverse Effect and (y) the date the Company receives written notice from Parent of Parent’s belief that a Company Material Adverse Effect has occurred, which notice explains in reasonable detail the basis for such belief.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by written notice of Parent: (a) at any time prior to the receipt of the Company Stockholder Approval if (i) a Change of Recommendation shall have occurred or the Company shall have failed to include in the Proxy Statement mailed to each holder of Company Common Shares the Company Board Recommendation; (ii) the Company shall have failed to reaffirm the Company Board Recommendation within ten (10) Business Days after both (x) an Acquisition Proposal shall have been made public and (y) receipt by the Company of a written request to do so from Parent; or (iii) there shall have been a material breach of the provisions of Section 5.3 or 5.4 which impairs, prevents or materially delays the consummation of the Transactions and, with respect to Section 5.4, such breaches cannot be or are not cured reasonably promptly after written notice thereof; or (b) at any time prior to the First Merger Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by or there shall be any inaccuracy in the Company representations or warranties set forth in this AgreementAgreement on the part of the Company, which breach, either individually or any such representation and warranty shall have become untrue after in the date aggregate, would result in, if occurring or continuing on the Closing Date, the failure of this Agreement, such that Sections 6.02(athe conditions set forth in Section 7.2(a) or 6.02(b) would not be satisfied 7.2(b), and such breach cannot be or failure to be true is not curable or, if curable, is not cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the Company and (ii) the 30th day following such notice and (y) the Termination Outside Date; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(b) if at any time when Parent or Merger Sub is then in breach of this Agreement and such breach would cause, or result in, the failure of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a7.3(a) or Section 6.03(b7.3(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)satisfied.

Termination by Parent. This Agreement may be terminated and the Mergers transactions contemplated hereby may be abandoned at any time prior to the First Effective Time Time, whether before or after the approval of the Arrangement by the Company Common Shareholders and holders of Company Options and Company RSUs or the approval of either of the Parent Proposals by the Parent Common Stockholders, by action of the Board of Directors of Parent if: (a) (i) the Board of Directors of Parent authorizes Parent, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and Parent notifies the Company in writing that it intends to enter into such an agreement, attaching the most current version of such agreement to such notice, (ii) the Company does not make, within five days of receipt of Parent’s written notification of its intention to enter into a binding agreement for a Superior Proposal, a written offer that the Board of Directors of Parent determines, in good faith after consultation with its financial advisors, is at least as favorable, from a financial point of view, to the Parent Common Stockholders as the Superior Proposal and (iii) Parent prior to such termination pays to the Company in immediately available funds any fees required to be paid pursuant to Section 5.5; provided, however, that Parent agrees (x) that it will not enter into a binding agreement referred to in clause (i) above until at least the sixth day after it has provided the notice to the Company required thereby and (y) to notify the Company promptly if its intention to enter into a written agreement referred to in its notification shall change at any time after giving such notification; (b) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate withdrawn or adversely modified its approval or recommendation of this Agreement pursuant and the Arrangement or failed to reconfirm its recommendation of this Section 7.04(a) if Agreement and the Arrangement after a written request by Parent to do so prior to the fifth business day prior to the date of the Company Requisite Vote has been obtainedMeeting; or (bc) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aSection 4.2(a) or 6.02(b4.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following within the earlier to occur of (i) 30 days after written notice thereof is given by Parent to the Company from Parent or (ii) if such 30 day period would extend beyond the date set forth in Section 5.2(a), 10 days prior to such date or any condition set forth in Section 4.1 shall become incapable of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Datesatisfaction; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(bclause (c) if Parent is then shall not be available to any party that has breached in breach of any of material respect its representations, warranties, covenants or agreements obligations under this Agreement in a any manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior shall have proximately contributed to the Parent Requisite Vote being obtained, (i) if failure of the Board of Directors of Parent authorizes Parent, Closing to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)have occurred.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifClosing: (a) if prior to the receipt of the Requisite Parent Vote at the Parent Stockholders Meeting, the Parent Board authorizes Parent, to the extent permitted by and subject to full compliance with the applicable terms and conditions of Directors this Agreement, including Section 5.04 hereof, to enter into an Acquisition Agreement (other than an Acceptable Confidentiality Agreement) in respect of a Superior Proposal; (b) if: (i) a Company Adverse Recommendation Change shall have occurred or the Company shall have made a approved or adopted, or recommended the approval or adoption of, any Company Change in RecommendationAcquisition Agreement; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(aor (ii) if the Company Requisite Vote has been obtainedshall have breached or failed to perform in any material respect any of its covenants and agreements set forth in Section 5.04; or (bc) if there has shall have been a breach of any representation, warranty, covenant covenant, or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Merger set forth in Section 6.02(a) or Section 6.02(b) ), as applicable, would not be satisfied and and, in either such case, such breach or failure to be true is not curable incapable of being cured by the End Date; or, if curablecapable of being cured by the End Date, is shall not have been cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xi) 30 days after written notice thereof is given by Parent to the Company or (ii) the 30th day following such notice and (y) the Termination End Date; provided further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.03(c) if Parent or Merger Sub is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant, or agreements under this Agreement in a manner such obligation hereunder that the conditions would cause any condition set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)satisfied.

Termination by Parent. This Subject to the other provisions of this Article VIII, this Agreement may be terminated and the Mergers transactions contemplated by this Agreement may be abandoned by Parent: (a) at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; providedOffer Acceptance Time, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any such representation and or warranty of the Company shall have become untrue after or incorrect following the date of this Agreement, such that Sections 6.02(awhich breach or failure to be true and correct would give rise to the failure of a condition set forth in clause (d) (Representations and Warranties) or 6.02(bclause (e) would not be satisfied (Performance of Obligations of the Company) of Annex I (and such breach or failure to be true and correct is not curable or, if curable, is not cured following notice prior to the Company from Parent End Date, or if curable prior to the End Date, has not been cured within the fewer of (i) 30 days after the giving of written notice of such breach or failure by Parent to the earlier of Company specifying this Section 8.04(a) and describing such breach or failure and (xii) the 30th day following such notice and (y) number of days remaining until the Termination End Date); provided that Parent shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 7.04(b8.04(a) shall not be available to Parent if either Parent is then or Merger Sub has breached in breach of any of its representationsmaterial respect any representation, warrantieswarranty, covenants covenant or agreements under this Agreement in a manner such that the conditions agreement set forth in Section 6.03(a) or Section 6.03(b) this Agreement which breach would not give rise to a failure of an Offer Condition to be satisfied (unless capable of being cured within 30 days).satisfied; or (cb) at any time prior to the Parent Requisite Vote being obtainedOffer Acceptance Time, if (i) if the Company Board shall have effected a Change of Directors Recommendation, or (ii) the Company Board has caused or permitted the Company or any of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, Company’s Subsidiaries to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with or the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, Company enters into or causes a Subsidiary thereof to enter into such an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Agreement.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) (i) the Board of Directors representations and warranties of the Company shall not be true and correct or the Company shall have made breached or failed to perform any of its covenants or agreements contained in this Agreement, which failure to be true and correct, breach or failure to perform (A) would give rise to the failure of a Company Change condition set forth in Recommendation; providedSection 7.2(a) or 7.2(b) and (B) cannot be cured by the Termination Date, howeveror if capable of being cured, that Parent will shall not have been cured within 30 days following receipt by the right Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.04(a8.4(a) if and the Company Requisite Vote has been obtained; or basis for such termination (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curableearlier, is not cured following notice the Termination Date); or (ii) the Company shall have breached in any material respect its obligations under Section 6.2, which breach (A) would give rise to the Company from Parent failure of a condition set forth in Section 7.2(b) and (B) cannot be cured by the Termination Date, or if capable of being cured, shall not have been cured within (x) 10 business days following receipt of written notice of such breach from Parent or failure by the earlier of (x) the 30th day following such notice and (y) any shorter period of time that remains between the date Parent provides written notice of such breach and the Termination Date; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent it is then in material breach of any of its representations, warranties, covenants or other agreements under this Agreement hereunder that would result in a manner such that the conditions any condition to Closing set forth in Section 6.03(a7.3(a) or Section 6.03(b7.3(b) would not be satisfied (unless capable of being cured within 30 days).satisfied; or (cb) at any time prior to the Parent Requisite Vote being obtained, (i) if the Company Board shall have effected a Change of Directors of Parent authorizes Recommendation in a manner adverse to Parent; (ii) the Company Board shall have approved, recommended, or otherwise declared advisable or proposed to approve, recommend or declare advisable (publicly or otherwise) any Acquisition Proposal; (iii) the extent permitted by and subject to complying with the terms of Section 5.03, to enter Company shall have entered into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, ; (iiiv) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company or the Company Board shall have publicly announced its intention to do any of the foregoing or (v) the Company shall have failed to include the Company Recommendation in immediately available funds any fees required the Proxy Statement, or failed to be paid hold the Company Shareholders Meeting pursuant to Section 7.05(c)6.3.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Duke Effective Time by action of the Board of Directors of Parent Board, if: (a) the Company Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, of Recommendation (provided that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a8.3(a) if after the Requisite Company Vote is obtained); (b) at any time following receipt of an Acquisition Proposal and prior to the Company Written Consent Delivery Date, the Company Board shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five Business Days) after receipt of any written request to do so from Parent; provided that the Company Board shall not be required to reaffirm such approval or recommendation on more than two (2) occasions; (c) the Company Board shall have failed to hold a vote of the holders of shares of Company Common Stock in order to obtain the Requisite Company Vote has been obtainedprior to the time required by Section 6.4; (d) the Company does not deliver the Company Written Consent on or prior to the Company Written Consent Delivery Date; or (be) at any time prior to the Gulf Effective Time, there has been a breach by the Company of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any such representation and or warranty of the Company shall have become untrue after the date of this Agreementuntrue, in either case, such that Sections 6.02(athe conditions in Section 7.2(a) or 6.02(bSection 7.2(b) would not be satisfied (and such breach or failure to be true and correct is not curable or, if curable, is not cured following notice prior to the Company from Parent of such breach Outside Date, or failure by if curable prior to the Outside Date, has not been cured within the earlier of (xi) 30 days after the 30th day following such giving of notice and thereof by Parent to the Company or (yii) three Business Days prior to the Termination Date; provided Outside Date); provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.3(e) shall not be available to Parent if Parent is then it has breached in breach of any of its representationsmaterial respect any representation, warrantieswarranty, covenants covenant or agreements under agreement set forth in this Agreement in a any manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior shall have proximately contributed to the Parent Requisite Vote being obtained, (i) if occurrence of the Board failure of Directors of Parent authorizes Parent, a condition to the extent permitted by and subject to complying with consummation of the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Merger.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Step Effective Time by action of the Parent as authorized by its Board of Directors of Parent ifDirectors: (a) the Board of Directors of the Company shall have made if a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote Triggering Event has been obtainedoccurred; or (b) if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and or warranty shall have become becomes untrue after the date of this Agreement, such that Sections 6.02(aa condition set forth in Section 8.3(a) or 6.02(b) 8.3(b), as the case may be, would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to (such that the Company from Parent of such breach applicable condition set forth in Section 8.3(a) or failure 8.3(b), as the case may be, would be satisfied) by the earlier of (x) the 30th day following such Drop Dead Date or 20 days after written notice and (y) thereof is given by Parent to the Termination DateCompany; provided provided, however, that Parent shall not have the right be permitted to terminate this Agreement pursuant to this Section 7.04(b9.4(b) if Parent is then if: (A) any material covenant of Parent, Merger Sub or Successor Sub contained in breach of any of its representations, warranties, covenants or agreements under this Agreement shall have been breached in any material respect, and such breach shall not have been cured in all material respects or (B) there shall be a manner material breach in any representation or warranty of Parent, Merger Sub or Successor Sub contained in this Agreement that shall not have been cured within 20 days after written notice thereof is given by the Company to Parent (in either case (A) or (B), such that the conditions set forth in Section 6.03(a8.2(a) or Section 6.03(band 8.2(b) would not be satisfied (unless capable satisfied). For the purposes of being cured within 30 days). (c) at any time this Agreement, a “Company Triggering Event” will be deemed to have occurred if, prior to the Parent Requisite Vote being obtained, Company Stockholders’ Meeting: (i) if the Company fails to include the Company Board Recommendation in the Joint Proxy Statement or a Change of Recommendation occurs and has not been withdrawn; (ii) the Company fails to call the Company Stockholders’ Meeting in accordance with Section 7.2 or fails to deliver the Joint Proxy Statement to its stockholders in accordance with Section 7.2, and the principal or primary cause of such failure shall not be due to any material breach by Parent, Merger Sub or Successor Sub of any of their respective representations, warranties or covenants under this Agreement; (iii) a tender offer or exchange offer for the outstanding shares of capital stock of the Company is commenced, and the Board of Directors of the Company (or any committee thereof) recommends that the stockholders of the Company tender their shares in such tender or exchange offer or within 10 Business Days after the commencement of such tender or exchange offer, the Board of Directors of the Company fails to recommend against (or maintain such recommendation against) acceptance of such tender offer or exchange offer by its stockholders; (iv) the Board of Directors of the Company, upon written request of Parent authorizes Parent, following any public proposal or public offer for a Competing Proposal directed to the extent Company or the Board of Directors of the Company, fails to publicly reaffirm the Company Board Recommendation within 10 Business Days after such request; provided that, for purposes of this Section 9.4(c), references to “20% or more” in the definition of Competing Proposal shall be deemed to be references to “50% or more”; provided further that Parent shall be entitled to make such a written request for reaffirmation only once for each such Competing Proposal and once for each increase of price of such Competing Proposal; or (v) the Company or any of its Subsidiaries intentionally and materially breaches its obligations under Section 6.2; provided, however, that Parent shall not be permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition terminate this Agreement with respect pursuant to a Company Triggering Event described in clause (i) or (ii) of such definition if (A) any material covenant of Parent Superior Proposal that did contained in this Agreement shall have been breached in any material respect, and such breach shall not result from have been cured in all material respects, or (B) there shall be a material breach in any representation or warranty of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of contained in this Agreement and (iii) prior to or concurrently with such terminationthat shall not have been cured, Parent pays to in each case within 20 days after written notice thereof is given by the Company to Parent (in immediately available funds any fees required to either case (A) or (B), such that the conditions set forth in Section 8.2(a) and 8.2(b) would be paid pursuant to Section 7.05(csatisfied).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent ifParent: (a) prior to the Board of Directors of time the Requisite Company Vote is obtained, if the Company Board shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) of Recommendation or if the Company Requisite Vote has been obtained; oror any of its Representatives shall have materially breached any of its obligations under Section 6.2; (b) if at any time prior to the Effective Time, there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under set forth in this Agreement in a manner such that the conditions set forth in Section 6.03(a7.2(a) or Section 6.03(b7.2(b) would not be satisfied (unless capable of being and such breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within 30 daysthe earlier of (i) thirty (30) days after the giving of notice thereof by Parent to the Company or (ii) three (3) Business Days prior to the Outside Date). ; provided that the right to terminate this Agreement pursuant to this Section 8.3(b) shall not be available if Parent has breached in any material respect any of its representations, warranties, covenants or agreements set forth in this Agreement so as to result in the failure of any condition set forth in Section 7.3(a) or Section 7.3(b); or (c) if at any time prior to the Effective Time, a Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Governmental Order in connection with a Requisite Regulatory Approval that has become final and non-appealable and remains in effect and that requires Parent Requisite Vote or any of its Subsidiaries (including the Company and its Subsidiaries) to take or commit to take any actions constituting a Burdensome Effect (it being obtainedunderstood and agreed by the Parties that only a Governmental Entity of competent jurisdiction in a jurisdiction listed on Section 4.5(a) of the Company Disclosure Letter shall constitute a Governmental Entity of competent jurisdiction for purposes of this Section 8.3(c)); provided, that Parent shall have used reasonable best efforts to prevent the entry of and to remove any such Governmental Order in accordance with Section 6.5; provided, further, that the right to terminate this Agreement pursuant to this Section 8.3(c) shall not be available to Parent if it has breached in any material respect any of its representations, warranties, covenants or agreements set forth in this Agreement in any manner that shall have been the primary cause of the occurrence of the failure of the condition set forth in Section 7.2(e) (iNo Burdensome Effect) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with consummation of the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required Merger to be paid pursuant to Section 7.05(c)satisfied.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action (notwithstanding any obtaining of the Board of Directors of Parent if:Shareholder Approval): (a) the Board of Directors of if (i) a Change in Recommendation shall have occurred, (ii) the Company shall have made entered into, or publicly announced its intention to enter into, a Company Change Acquisition Agreement, (iii) the Company shall have, in any material respect, breached or failed to perform any of the covenants and agreements set forth in Section 5.2, Section 6.1 and/or Section 6.2,(iv) the Company Board fails to make the Company Recommendation; provided, however(v) the Company Board approves, that endorses or recommends to the Company’s shareholders any Takeover Proposal, (vi) a tender offer or exchange offer relating to the Common Shares shall have been commenced by a Person unaffiliated with Parent will and the Company shall not have the right sent to terminate this Agreement its shareholders pursuant to Rule 14e-2 under the Securities Act, within five Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Recommendation and recommending that shareholders reject such tender or exchange offer, or (vii) the Company or the Company Board (or any committee thereof) shall publicly announce its intention to do any of actions specified in this Section 7.04(a) if the Company Requisite Vote has been obtained8.3(a), as applicable; or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(athe conditions to the Closing of the Merger set forth in Section 7.2(a) or 6.02(b) Section 7.2(b), as applicable, would not be satisfied and and, in either such case, such breach or failure to be true is not curable incapable of being cured by the Outside Date or, if curable, is has not been cured following notice to in all material respects by the Company within 20 days after its receipt of written notice thereof from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) or, if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time less than 20 days prior to the Parent Requisite Vote being obtainedOutside Date, (i) if the Board of Directors of Parent authorizes Parent, prior to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(cOutside Date).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time Time, by action of the Board of Directors of Parent after consultation with its legal advisors, if: (a) the Board of Directors of Parent determines that proceeding with the Merger would be inconsistent with its fiduciary obligations by reason of a Parent Superior Proposal and elects to terminate this Agreement effective prior to the Cutoff Date; provided that Parent may not effect such termination pursuant to this Section 9.4(a) unless and until (i) the Company receives at least one week's prior written notice from Parent of its intention to effect such termination pursuant to this Section 9.4(a); (ii) during such week, Parent shall, and shall cause its respective financial and legal advisors to, consider any adjustment in the terms and conditions of this Agreement that the Company may propose; and provided, further, that any termination of this Agreement pursuant to this Section 9.4(a) shall not be effective until Parent has made the $50 million payment required by Section 9.5(b)(i); or (i) there has been a breach by the Company of any representation, warranty covenant or agreement set forth in this Agreement or if any representation or warranty of the Company shall have made a Company Change become untrue, in Recommendationeither case such that the conditions set forth in Section 8.3(a) would not be satisfied and (ii) such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given by Parent to the Company; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a shall not be available to Parent if it, at such time, is in material breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a8.2(a) or Section 6.03(b) would shall not be satisfied (unless capable of being cured within 30 days).satisfied; or (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes the Company shall have withdrawn or materially modified, in a manner adverse to Parent, its approval or recommendation of the Merger or recommended a Company Acquisition Proposal, or resolved to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)do so.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) at any time prior to the Board of Directors of Required Company Stockholder Vote having been obtained, (i) the Company Board shall have made a Company Change in Recommendation, (ii) the Company shall have entered into any letter of intent or similar document or any Contract relating to a Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3(b)), or (iii) the Company shall have materially breached or failed to perform in any material respect its obligations set forth in Section 5.3; provided, however, that Parent will not have the Parent’s right to terminate this Agreement pursuant to this Section 7.04(a7.3(a) if shall expire upon the receipt of the Required Company Requisite Stockholder Vote; (b) at any time prior to the Required Parent Stockholder Vote has having been obtained, (i) the Parent Board authorizes Parent, to the extent permitted by and subject to compliance with Section 5.4, to enter into a definitive Parent Alternative Acquisition Agreement with respect to a Parent Superior Proposal, (ii) concurrently with the termination of this Agreement, Parent enters into such Parent Alternative Acquisition Agreement with respect to a Parent Superior Proposal, and (iii) prior to or concurrently with such termination, Parent pays to the Company, by wire transfer of immediately available funds, the Termination Fee pursuant to Section 7.6; or (bc) at any time prior to the Effective Time (whether before or after the date on which the Required Parent Stockholder Vote is obtained), if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aany condition set forth in Section 6.2(a) or 6.02(bSection 6.2(b) would not then be satisfied and such breach or failure to be true is not curable or, if curable, is not cured prior to the earlier of (i) 30 days following notice to the Company from Parent of such breach or failure by the earlier of and (xii) the 30th day following such notice and (y) date that is three Business Days prior to the Termination End Date; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.3(c) if Parent is then in breach of any of has breached its representations, warranties, covenants or agreements under contained in this Agreement in a manner such that the conditions any condition set forth in Section 6.03(a6.3(a) or Section 6.03(b6.3(b) would is not be satisfied (unless reasonably capable of being satisfied while such breach is continuing, and such breach has not been cured within 30 days)in all material respects. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time Barnxxxxx Xxxective Time, before or after any approval by the stockholders of Parent referred to in Section 9.1(a)(iii), by action of the Board of Directors of Parent Parent, if: : (a) (i) there has been a breach by Barnxxxxx xx any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of Barnxxxxx xxxll have become untrue, in either case such that the conditions set forth in Section 9.4(b) would not be satisfied and (ii) such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given by Parent to Barnxxxxx; xx (b) (i) there has been a breach by the Company of any representation or warranty contained in this Agreement or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 9.4(a) would not be satisfied and (ii) such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given by Parent to the Company; or (c) the Board of Directors of Barnxxxxx xxxll have withdrawn or materially modified, in a manner adverse to Parent, its approval or recommendation of the Barnxxxxx Xxxger or recommended a Barnxxxxx Xxxuisition Proposal, or resolved to do so; or (d) the Board of Directors of the Company shall have made withdrawn or materially modified, in a manner adverse to Parent, its approval or recommendation of the Company Merger or recommended a Company Change in RecommendationAcquisition Proposal, or resolved to do so; 38 45 provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a10.5(a) if the Company Requisite Vote has been obtained; or or (b) there has been a shall not be available to Parent if it, at such time, is in material breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in either Section 6.03(a9.2(a) or Section 6.03(b9.3(a) would shall not be satisfied (unless capable of being cured within 30 days)satisfied. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Subject to Section 5.18, this Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifClosing: (ad) the Board of Directors of If: (i) a Company Adverse Recommendation Change shall have occurred or the Company shall have made a approved or adopted, or recommended the approval or adoption of, any Company Change Acquisition Agreement; or (ii) the Company shall have materially and willfully breached any of its covenants and agreements set forth in RecommendationSection 5.03; provided, however, provided that Parent will not have the Parent’s right to terminate this Agreement pursuant to this Section 7.04(a7.03(a) shall expire at 5:00 p.m. PT, on the tenth (10th) Business Day following the later of the date on which such right to terminate first arose or Parent becomes aware of such right to terminate; (e) if the Company Requisite Vote has been obtained; or (b) there has shall have been a breach of any representation, warranty, covenant covenant, or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections the conditions to the Closing of the Merger set forth in Section 6.02(a) or Section 6.02(b) ), as applicable, would not be satisfied and and, such breach or failure to be true is not curable incapable of being cured by the End Date; or, if curablecapable of being cured by the End Date, is shall not have been cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the Company or (ii) the 30th day following such notice and (y) the Termination End Date; provided further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.03(b) if Parent or Merger Sub is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant, or agreements under this Agreement in a manner such obligation hereunder that the conditions would cause any condition set forth in Section 6.03(a) or Section 6.03(b) would not to be satisfied (unless capable of being cured within 30 days).satisfied; or (c) at any time prior to the Parent Requisite Vote being obtained, (if) if the Board Parent Guarantor is terminated as the chief executive officer of Directors the Company without Cause by action of Parent authorizes Parentthe Company Board, to the extent permitted by and subject to complying with the terms consent of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Special Committee.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent ifBoard: (a) prior to the time the Requisite Versum Vote is obtained, if the Versum Board of Directors of the Company shall have made a Company Change in of Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or; (b) if at any time prior to the Effective Time, there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach Versum of any of its representations, warranties, covenants or agreements under set forth in this Agreement in a manner such that the conditions set forth in Section 6.03(a8.2(a) or Section 6.03(b8.2(b) would not be satisfied (unless capable of being and such breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within 30 daysthe earlier of (i) thirty (30) days after the giving of notice thereof by Parent to Versum or (ii) three (3) Business Days prior to the Outside Date).; provided, that the right to terminate this Agreement pursuant to this Section 9.3(b) shall not be available if Parent has breached in any material respect any of its representations, warranties, covenants or agreements set forth in this Agreement in any manner that shall have been the primary cause of or primarily resulted in the occurrence of the failure of a condition to the consummation of the Merger not to be satisfied; (c) if at any time prior to the Effective Time, a Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Governmental Order in connection with a Requisite Regulatory Approval that has become final and non-appealable and that (A) requires Parent Requisite Vote being obtainedor any of its Subsidiaries (including Versum and its Subsidiaries) to take or commit to take any actions constituting or that would reasonably be expected to have a Burdensome Effect or (B) would otherwise constitute or reasonably be expected to have a Burdensome Effect; provided, (ithat Parent shall have used reasonable best efforts to prevent the entry of and to remove any such Governmental Order in accordance with Section 7.5; provided, further, that the right to terminate this Agreement pursuant to this Section 9.3(c) shall not be available to Parent if it has breached in any material respect any of its representations, warranties, covenants or agreements set forth in this Agreement in any manner that shall have been the Board primary cause of Directors or primarily resulted in the occurrence of Parent authorizes Parent, the failure of the condition set forth in Section 8.2(d) [No Burdensome Effect] to the extent permitted by and subject to complying with consummation of the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required Merger to be paid pursuant to Section 7.05(c)satisfied.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned abandoned: (a) by written notice of Parent (on behalf of the Buyer Parties) at any time prior to the First Effective Time by action of the Board of Directors of Parent if: Stockholders Meeting if (ai) the Board of Directors of the Company fails to recommend in the Proxy Statement the approval and adoption of this Agreement or shall make a Change of Recommendation or shall approve, recommend or endorse (or in the case of a tender offer or exchange offer subject to Regulation 14D under the Exchange Act, fails to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, rejection of within ten (10) Business Days after the commencement of such tender offer or exchange offer) an Acquisition Proposal or resolves or publicly proposes to do any of the foregoing; (ii) the Board of Directors of the Company fails to publicly reaffirm the Company Recommendation upon the reasonable written request therefor by Parent by the earlier of ten (10) Business Days following a reasonable written request by Parent and two (2) Business Days prior to the Stockholder Meeting; or (iii) there shall have made been a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if willful and material breach by any of the Company Requisite Vote has been obtainedParties' directors, officers or manager of Section 6.2, Section 6.3 or Section 6.4 and, with respect to Section 6.3 or Section 6.4, such breaches cannot be or are not cured reasonably promptly after written notice thereof; or (b) by written notice of Parent (on behalf of the Buyer Parties) at any time prior to the DPA Merger Effective Time if there has been a breach of any representation, warranty, covenant or agreement made by the Company Parties in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(athe conditions set forth in Section 7.2(a) or 6.02(b7.2(b) would not be satisfied and such breach cannot be or failure to be true is not curable or, if curable, is not cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the 30th day following such notice Company and (yii) the Termination Date; provided provided, however, that Parent shall the Buyer Parties are not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to before the First Effective Time by action of the Board of Directors of Parent ifTime: (a) prior to the Board earlier to occur of Directors receipt of the Requisite Company shall have made a Company Change in RecommendationVote or the Acceptance Time, (i) following any Adverse Recommendation Change; provided, however, provided that Parent will not have the Parent's right to terminate this Agreement pursuant to this Section 7.04(a7.3(a) shall expire at 5:00 p.m. (Pacific Time) on the fifteenth Business Day following the date on which such Adverse Recommendation Change occurs, or (ii) if the Company Requisite Vote Board shall have failed to reconfirm the Company Board Recommendation promptly, and in any event within the earlier of ten Business Days following Parent's request to do so and two Business Days prior to the Company Stockholders Meeting; provided, that, such request may only be made by Parent in the event the Company has received a public announcement of a Takeover Proposal or any amendment to a Takeover Proposal and in such event Parent may make such request up to two times every 30 days; (b) prior to the Acceptance Time, if (i) the Company Board approves, endorses or recommends, or publicly proposes to approve, endorse or recommend, a Takeover Proposal, (ii) a tender offer or exchange offer for all outstanding shares of capital stock of the Company is commenced and the Company Board fails to promptly (but in any event within ten Business Days after commencement of such tender or exchange offer) recommend that the Company's stockholders not tender their shares of Common Stock in such tender or exchange offer, or (iii) the Company shall have materially breached its obligations under Section 5.4, which material breach, if curable by the Company, shall not have been obtainedcured by the Company within five Business Days following the Company's receipt of written notice of such material breach (provided that any material breach pursuant to this subclause (iii) that results in a Takeover Proposal that is publicly disclosed shall not be curable); or (bc) there has been a breach of any representationprior to the Acceptance Time, warranty, covenant or agreement made by if the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of breaches any of its representations, warranties, covenants or agreements under contained in this Agreement Agreement, which breach (i) would give rise to the failure of an Offer Condition set forth in clause (c)(iv) or (c)(v) of Exhibit A or a manner such that the conditions condition to Closing set forth in Section 6.03(a6.2(a) or Section 6.03(b6.2(b) would and (ii) has not be satisfied (unless capable been cured by the Company within twenty Business Days after the Company's receipt of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board written notice of Directors of Parent authorizes such breach from Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative but only so long as neither Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material nor Merger Sub are then in breach of their respective representations, warranties, covenants or agreements contained in this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material which breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays would give rise to the Company failure of a condition to Closing set forth in immediately available funds any fees required to be paid pursuant to Section 7.05(c6.3(a) or Section 6.3(b).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at by Parent (with any time prior to the First Effective Time termination by action of the Board of Directors of Parent if:also being an effective termination by Merger Sub): (a) the Board If (i) a Company Adverse Recommendation Change shall have occurred, or (ii) after public announcement of Directors of an Alternative Proposal, the Company Board shall have made a failed to reaffirm the Company Change in Recommendation; providedBoard Recommendation within ten (10) Business Days after receipt of any written request to do so from Parent, however, provided that Parent will may only make such request once with respect to any particular Alternative Proposal or any material publicly announced amendment or modification thereto; or (iii) the Company or the Company Board has breached its obligations under Section 6.3 or Section 6.4 in any material respect; provided that Parent shall not have the right to terminate this Agreement pursuant to under this Section 7.04(a8.4(a) if after the Company Requisite Vote has been Stockholder Approval is obtained; or. (b) if there has shall have been a breach of any representation, warranty, covenant covenant, or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(athe conditions to the occurrence of the Migration Commencement Time set forth in Section 7.2(a), Section 7.2(b) or 6.02(bto the occurrence of the Merger set forth in Section 7.5(a) or Section 7.5(b), as applicable, would not be satisfied and and, in either such case, such breach or failure to be true is not curable or, if curable, is not incapable of being cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination End Date; provided that Parent shall have given the Company at least 30 days written notice prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 8.4(b); provided further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(b) if Parent or Merger Sub is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant, or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would obligation hereunder, which breach has not be satisfied (unless capable of being cured within 30 days)been cured. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Parent may terminate this Agreement may be terminated by giving written notice thereof to the Shareholder and the Mergers may be abandoned Rayden at any time prior to the First Effective Time by action of the Board of Directors of Parent if: Closing: (a) in the Board of Directors of event that the Shareholder, Rayden or the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Parent has notified Shareholder and Rayden of the breach, and the breach has continued without cure until the earlier of 20 days after the notice of such breach (which Company shall promptly provide upon actual knowledge of such breach) or agreement made the Closing Date, whichever is earlier, (b) if the Registration Statement for the IPO has not been filed with the Securities and Exchange Commission on or before December 31, 1997, or (c) if the IPO Closing Date shall not have occurred on or before April 30, 1998, by reason of the Company failure of any condition precedent under Section 7.1 hereof (unless the failure results primarily from Parent itself materially breaching any material representation, warranty, or covenant contained in this Agreement, or any such representation ); and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a38 (iii) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure Termination by the earlier of (x) the 30th day following such notice Shareholder and (y) the Termination Date; provided that Parent shall not have the right to Rayden. The Shareholder and Rayden may terminate this Agreement pursuant by jointly giving written notice thereof to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Closing: (a) in the event the Parent Requisite Vote being obtainedhas breached any material representation, warranty, or covenant contained in this Agreement in any material respect, the Shareholder or Rayden have notified Parent of the breach, and the breach has continued without cure until the earlier of 20 days after the notice of such breach (which Shareholder and Rayden shall promptly provide upon actual knowledge of such breach) or the Closing Date, whichever is earlier, (ib) if the Board of Directors of Parent authorizes Parent, to Registration Statement for the extent permitted by and subject to complying IPO has not been filed with the terms Securities and Exchange Commission on or before December 31, 1997, or (c) if the IPO Closing Date shall not have occurred on or before April 30, 1998 by reason of the failure of any condition precedent under Section 5.037.2 hereof (unless the failure results primarily from the Shareholder materially breaching any material representation, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of warranty, or covenant contained in this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent ifParent: (a) the Board of Directors of the Company shall have made if a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(aTriggering Event (as defined below) if the Company Requisite Vote has been obtainedoccurred; or (b) if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and or warranty shall have become becomes untrue after the date of this Agreement, such that the condition set forth in Sections 6.02(a8.2(a) or 6.02(b) 8.2(b), as the case may be, would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following within twenty (20) days after written notice thereof is given by Parent to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination DateCompany; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant by Parent will not be available to this Section 7.04(b) Parent if Parent or Merger Sub is then at that time in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with . For the termination purposes of this Agreement, Parent, subject a “Company Triggering Event” will be deemed to complying with have occurred if: (A) the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach Company Board fails to recommend approval of this Agreement and the Merger in the Proxy Statement, a Change in Company Recommendation occurs or the Company Board resolves to make a Change in Company Recommendation; (iiiB) prior to or concurrently with such termination, Parent pays the Company Board recommends to the stockholders of the Company in immediately available funds a Competing Transaction or publicly announces that it intends to do so or enters into any fees required to be paid Alternative Acquisition Agreement accepting any Competing Transaction; (C) a tender offer or exchange offer for the outstanding shares of capital stock of the Company is commenced (other than pursuant to Section 7.05(cthe transactions contemplated by this Agreement), and the Company Board fails to recommend against acceptance of such tender offer or exchange offer by its stockholders; (D) the Company Board, upon request of Parent following receipt of a proposal or offer for a Competing Transaction, fails to reaffirm to Parent the approval or recommendation of the Merger and this Agreement within five (5) Business Days after such request; or (E) the Company or any of its officers, directors, representatives, or agents knowingly and materially breaches its obligations under Sections 7.2 or 7.5.

Termination by Parent. This Agreement may also be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time by action of the Board of Directors of Parent ifTime: (a) if (i) the Company Board shall have withdrawn, modified or amended in any manner adverse to Parent or Merger Sub any of Directors its recommendations described in Section 4.1(a) hereof, (ii) the Company or the Company Board shall have approved, recommended or entered into an agreement, arrangement or understanding with respect to, or consummated, any Acquisition Proposal from a Person other than Parent or any of its affiliates, (iii) the Company Board in response to such Acquisition Proposal, shall not have recommended rejection of such Acquisition Proposal within ten Business Days of commencement of such Acquisition Proposal or of any request by the Parent to do so, or (iv) resolved to do any of the Company shall have made a Company Change actions described in Recommendation; provided(i), however, that Parent will not have the right to terminate this Agreement pursuant to (ii) or (iii) of this Section 7.04(a6.2(a) if the Company Requisite Vote has been obtainedor publicly announced its intention to do any of such actions; or (b) there has been upon a material breach of any representation, warranty, covenant or agreement made by (other than Section 4.4) on the part of the Company set forth in this Agreement, or if (i) any such representation and or warranty of the Company set forth herein that is qualified as to materiality or Material Adverse Effect shall have become untrue after or (ii) any such representation or warranty of the date of this AgreementCompany that is not so qualified shall have become untrue in any material respect, if such that Sections 6.02(a) false representation or 6.02(bwarranty (together with any other false representations or warranties) would not be satisfied and such breach or failure reasonably be expected to be true is not curable orhave a Material Adverse Effect on the Company (each, a “Terminating Company Breach”); provided, however, that, if curable, such Terminating Company Breach is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless reasonably capable of being cured within 30 days).by the Company no later than ten calendar days after Parent has furnished the Company with written notice of such Terminating Company Breach through the exercise of reasonable best efforts, so long as the Company continues to exercise such reasonable best efforts, Parent may not terminate this Agreement under this Section 6.2(b) prior to the expiration of such ten-day period; or (c) at upon a breach of any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms provision of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to 4.4 by the Company in immediately available funds or any fees required to be paid pursuant to Section 7.05(c)Representative of the Company.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the The Company shall have made breached or failed to perform any of its representations and warranties, covenants or agreements set forth in this Agreement such that the conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied, and such breach or failure to perform is not capable of being cured by the Company prior to the Termination Date or is not cured by the Company within 30 days after Parent has delivered to the Company a Company Change in Recommendationwritten notice of such breach or failure to perform; provided, however, that Parent will may not have the right to terminate this Agreement pursuant to under this Section 7.04(a9.4(a) if the Company Requisite Vote has been obtained; or (b) there has been a Parent is then in breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a8.2(a) or Section 6.03(b8.2(b) would shall not be satisfied satisfied; or (unless capable of being cured within 30 days).b) a Company Adverse Recommendation Change shall have occurred; (c) at any time prior to obtaining the Parent Requisite Vote being obtainedShareholder Approval, concurrently with the entry by Parent into a binding definitive agreement providing for a Superior Proposal; provided, that (i) if the Board of Directors of Parent authorizes Parenthas complied in all respects with Section 7.3, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and has previously paid (iii) prior to or concurrently with such termination, Parent termination pays to Company) the fee provided for under Section 9.5(b); (d) the Company shall have incurred impairment charges or write downs to the Company’s assets since June 30, 2014 in immediately available funds an aggregate amount exceeding the Termination Threshold; or (e) any fees required suit, action or other litigation arising from the Company’s operations is filed against the Company (other than any transaction litigation filed in connection with this Agreement and the transactions contemplated hereby) since June 30, 2014 and the damages that could reasonably be expected to be paid pursuant to Section 7.05(c)result from an adverse judgment in connection with such litigation (other than losses or damages covered by applicable insurance) exceed the Termination Threshold.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time Closing by action of the Board of Directors of Parent ifParent: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company and/or EFIH in this Agreement, or any such representation and or warranty shall have become untrue after the date of this Agreement, as if, in each such that Sections 6.02(a) case, such representation or 6.02(b) would not warranty were required by the Agreement to be satisfied true on and as of each such date between the date hereof and the Closing Date, which breach or failure of a representation, warranty, covenant or agreement to be true is not curable or, if curable, is not cured following notice or to be performed (i) would result in a failure of a condition set forth in any provision of Section 7.1 or Section 7.2 (which for the Company from Parent purpose of such clauses it shall be assumed such breach is continuing as of the Closing), and (ii) cannot be or has not been cured within thirty (30) Business Days after the Company’s or EFIH’s receipt of written notice thereof from Parent; provided, however, that the termination right in this clause (a) shall not apply if either Parent or Merger Sub is then in breach of this Agreement or the Oncor Letter Agreement in a manner that would result or has resulted in any of the conditions set forth in Section 7.1 or Section 7.3 not being satisfied; (b) if there has been a breach of any representation, warranty, covenant or agreement made by Oncor or Oncor Holdings under the Oncor Letter Agreement, or any such representation or warranty shall have become untrue after the date of this Agreement, as if, in each such case, such representation or warranty were required by the Agreement to be true on and as of each such date between the date hereof and the Closing Date, which breach or failure of a representation, warranty, covenant or agreement to be true or to be performed (i) would result in a failure of a condition set forth in any provision of Section 7.1 or Section 7.2 (which for the purpose of such clauses it shall be assumed such breach is continuing as of the Closing) and (ii) cannot be or has not been cured within thirty (30) Business Days after the Company’s, EFIH’s, Oncor’s and Oncor Holdings’ receipt of written notice thereof from Parent; provided, however, that the termination right in this clause (b) shall not apply if either Parent or Merger Sub is then in breach of this Agreement or the Oncor Letter Agreement in a manner that would result or has resulted in any of the conditions set forth in Section 7.1 or Section 7.3 not being satisfied; (c) if the Company and/or EFIH fail to consummate the Closing on or prior to the date required by Section 1.4; provided, however, that the earlier termination right in this clause (c) shall not apply if either Parent nor Merger Sub is then in breach of this Agreement or the Oncor Letter Agreement in a manner that would result or has resulted in the failure to consummate the Closing; (d) if the Company or EFIH files or expressly supports in the Bankruptcy Court a plan of reorganization that is inconsistent in any substantive legal or economic respect with this Agreement and the Plan of Reorganization (solely as it the Plan of Reorganization relates to the E-Side Debtors) and such inconsistency cannot be or has not been cured within thirty (30) Business Days after the Company’s or EFIH’s receipt of written notice thereof from Parent (which notice must occur within five (5) Business Days of the filing of such Plan); (e) if the Bankruptcy Court enters an order, or if the Company or EFIH files a motion seeking entry of an order, approving any sale or other disposition (other than a sale or other disposition permitted by this Agreement) of (xi) any material portion of the assets of the Company or its Subsidiaries or (ii) any equity interests in EFIH or any of its Subsidiaries (including the Oncor Entities), to any Person(s) other than Parent, Merger Sub or any of their respective Affiliates (excluding those Subsidiaries to be transferred to Reorganized TCEH or disposed of, in each case pursuant to this Agreement and/or the Plan of Reorganization); (f) if a trustee is appointed in the Chapter 11 Cases pursuant to Section 1104 of the Bankruptcy Code; (g) if any Chapter 11 Case, other than the cases relating to (i) LSGT Gas Company LLC, (ii) EECI, Inc., (iii) EEC Holdings, Inc., and (iv) LSGT SACROC, Inc., is dismissed or converted to a case under Chapter 7 of the Bankruptcy Code and neither such dismissal or conversion contemplates the Closing Date Transactions and the other transactions contemplated by this Agreement; (h) if the Bankruptcy Court orders the substantive consolidation of (i) the 30th day following such notice and chapter 11 estates of the Company and/or EFIH and/or any of their respective Subsidiaries, on one hand, with (yii) the Termination Datechapter 11 estates of EFCH and/or any of its Subsidiaries, on the other hand; (i) upon any termination of the Plan Support Agreement in accordance with its terms as to the Company, EFIH, Parent or Merger Sub; (j) if the Bankruptcy Court does not enter an order approving this Agreement within forty-five (45) days of the date of this Agreement; or (k) if Parent, Merger Sub, Oncor and Oncor Holdings fail to enter into the Oncor Letter Agreement in substantially the form attached hereto as Exhibit K within seven (7) days following the date hereof; provided that however if Parent shall has not have the right to terminate terminated this Agreement pursuant to this Section 7.04(b8.4(k) if thirteen (13) days after such seven (7) day period elapses, this Section 8.4(k) shall be of no further force and effect and Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner shall have no such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior right to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of terminate this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Acceptance Time by action of the Board of Directors of Parent if: (a) the Board of Directors of (i) the Company Board shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a(ii) if the Company Requisite Vote has shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or Company 13E-3, (iii) a tender offer or exchange offer for outstanding Shares shall have been obtainedcommenced (other than by the Parent or an Affiliate of the Parent) and the Company Board shall have recommended that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 Business Days after the commencement of such tender or exchange offer, the Company Board shall have failed to recommend against acceptance of such offer; or (iv) the Company shall have materially breached or shall have failed to perform in any material respect its obligations set forth in Section 6.2; or (b) at any time prior to the Effective Time, by action of the Parent Board, if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(aany condition set forth in Section (c)(i) or 6.02(band Section (c)(ii) of Schedule I would not be satisfied by the Termination Date and such breach or failure to be true is not curable by the Termination Date or, if curable, is not cured prior to the earlier of (i) 20 days following notice to the Company from Parent of such breach or failure by the earlier of and (xii) the 30th day following such notice and (y) date that is three Business Days prior to the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(b) if Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days)Agreement. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by Parent, notwithstanding the adoption of this Agreement by Parent as sole stockholder of Merger Sub: (a) if (i) the board of directors of the Company or any committee thereof shall have made a Change of Recommendation or (ii) a tender or exchange offer for Shares that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent and, within ten (10) business days after the commencement of such tender or exchange offer (within the meaning of Rule 14d-2 under the Exchange Act), the Company shall not have filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the Company stockholders reject such Acquisition Proposal and not tender any Shares into such tender or exchange offer; (b) at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; providedAcceptance Time, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, and such that Sections 6.02(abreach or untruth gives rise to a failure of the Tender Offer Conditions set forth in paragraph (3) or 6.02(b(4) would not of Exhibit A hereto to be satisfied and such breach or failure to be true condition is not curable orincapable of being cured by the Termination Date, or if curable, is has not been cured following within twenty (20) business days after receipt of written notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination DateParent; provided that Parent shall not have given the right Company at least thirty (30) days written notice (or such shorter period of time as may remain prior to terminate this Agreement the Termination Date) prior to such termination pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days8.4(b). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).; or

Termination by Parent. This Agreement may be terminated terminated, and the Mergers Transactions may be abandoned abandoned, by action of Parent (with any termination by Parent also being an effective termination by Merger Sub): (a) prior to the Effective Time, if (i) the Company Board shall have made a Change of Recommendation, (ii) the Company Board fails to recommend against acceptance of a tender or exchange offer for any outstanding shares of capital stock of the Company that constitutes an Acquisition Proposal (other than by Parent or any of its Subsidiaries), including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against such tender offer or exchange offer, within ten (10) business days after commencement, or (iii) the Company shall have entered into, or publicly announced its intention to enter into, an Alternative Acquisition Agreement; or (b) at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of Time, if the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of breached any representation, warranty, covenant or other agreement made by the Company in this Agreement, Agreement or if any such representation and warranty shall have become untrue inaccurate after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or inaccuracy would, individually or in the aggregate, result in a failure to be true is not curable orof a condition in Section 7.2(a) or Section 7.2(b), if curablecontinuing on the Closing Date, is being satisfied, and such breach or inaccuracy (x) cannot be cured following notice to by the Company by the Termination Date or (y) if capable of being cured, shall not have been cured on or before the earlier of (A) 30 calendar days following receipt of written notice from Parent thereof or (B) the expiration of any shorter period of time that remains between the date Parent provides written notice of such breach or failure by inaccuracy and the earlier of (x) the 30th day following such notice and (y) date that is three business days prior to the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(b) if Parent it is then in breach of any representation, warranty, covenant or other agreement hereunder that would result in the failure of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions any condition set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of 7.3 being cured within 30 days)satisfied. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned by Parent and Merger Sub: (a) prior to the time the Written Consent is delivered, if (i) the Company Board shall have made a Change of Recommendation or (ii) the Company shall have materially breached Section 7.2; (b) if at any time prior to the First Effective Time Time, there has been a breach or failure to perform by action the Company of the Board of Directors of Parent if: (a) the Board of Directors any representation, warranty, covenant or agreement set forth in this Agreement, or if any representation or warranty of the Company shall have been inaccurate when made a or shall have become inaccurate after July 20, 2020, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach, failure or inaccuracy is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) days after the giving of notice thereof by Parent to the Company Change in Recommendationand (ii) the Outside Date); provided, however, provided that Parent will may not have the right to terminate this Agreement pursuant to this Section 7.04(a9.3(b) if the Company Requisite Vote has been obtained; or (b) there has been a Parent or Merger Sub is then in material breach of any representation, warranty, covenant or agreement made by the Company contained in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a8.3(a) or Section 6.03(b8.3(b) would not be satisfied (unless capable of being cured within 30 days).satisfied; (c) at any time prior if Principal Stockholder has obtained the requisite votes for the Principal Stockholder Shareholder Approval pursuant to the Principal Stockholder Postal Ballot but the Written Consent has not been delivered to Parent Requisite Vote being obtainedby the Consent Delivery Deadline (provided, (ithat such termination right shall lapse automatically upon delivery to Parent of the Written Consent) if the Board of Directors of Parent authorizes or if, after delivery to Parent, such Written Consent is rescinded, withdrawn or modified in any manner adverse to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with Merger Sub or the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).Merger; or

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent Parent, at any time prior to the Effective Time, before or after the approval by the stockholders of the Company, if (a) the Company shall have failed to comply in any material respect with any of the covenants or agreements contained in Article 2, Article 6 and Article 7 of this Agreement to be complied with or performed by the Company at or prior to such date of termination; provided, however, that if such failure to comply is capable of being cured prior to the End Date, such failure shall not have been cured within thirty (30) days of delivery to the Company of written notice of such failure, (b) there exists a breach or breaches of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 8.2(a) would not be satisfied; provided, however, that if such breach or breaches are capable of being cured prior to the End Date, such breaches shall not have been cured within thirty (30) days of delivery to the Company of written notice of such breach or breaches, or (c) a Company Triggering Event (as defined below) shall have occurred. For the purposes of this Agreement, a "COMPANY TRIGGERING EVENT" shall be deemed to have occurred if: : (a) the Board of Directors of the Company or any committee thereof shall for any reason have withdrawn or shall have made amended or modified in a Company Change manner adverse to Parent its recommendation in Recommendationfavor of, the adoption and approval of the Agreement or the approval of the Merger; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after failed to include in the date Proxy Statement/Prospectus the recommendation of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by Company in favor of the adoption and subject to complying with approval of the terms Agreement and the approval of Section 5.03, to enter into an Alternative Parent Acquisition Agreement the Merger; (c) the Board of Directors of the Company or any committee thereof shall have approved or recommended any Superior Proposal with respect to the Company; or (d) a Parent Superior Proposal that did not result from a material breach tender or exchange offer relating to securities of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required shall have been commenced by a Person unaffiliated with Parent and the Company shall not have sent to be paid its securityholders pursuant to Section 7.05(c)Rule 14e-2 promulgated under the Exchange Act, within ten (10) business days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company recommends rejection of such tender or exchange offer.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time Closing by action of the Board of Directors of Parent ifParent: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company and/or EFIH in this Agreement, or any such representation and or warranty shall have become untrue after the date of this Agreement, as if, in each such that Sections 6.02(a) case, such representation or 6.02(b) would not warranty were required by the Agreement to be satisfied true on and as of each such date between the date hereof and the Closing Date, which breach or failure of a representation, warranty, covenant or agreement to be true is not curable or, if curable, is not cured following notice or to be performed (i) would result in a failure of a condition set forth in any provision of Section 7.1 or Section 7.2 (which for the Company from Parent purpose of such clauses it shall be assumed such breach is continuing as of the Closing), and (ii) cannot be or has not been cured within thirty (30) Business Days after the Company’s or EFIH’s receipt of written notice thereof from Parent; provided, however, that the termination right in this clause (a) shall not apply if either Parent or the Merger Subs is then in breach of this Agreement or the Oncor Letter Agreement in a manner that would result or has resulted in any of the conditions set forth in Section 7.1 or Section 7.3 not being satisfied; (b) if there has been a breach of any representation, warranty, covenant or agreement made by Oncor or Oncor Holdings under the Oncor Letter Agreement, or any such representation or warranty shall have become untrue after the date of this Agreement, as if, in each such case, such representation or warranty were required by the Agreement to be true on and as of each such date between the date hereof and the Closing Date, which breach or failure of a representation, warranty, covenant or agreement to be true or to be performed (i) would result in a failure of a condition set forth in any provision of Section 7.1 or Section 7.2 (which for the purpose of such clauses it shall be assumed such breach is continuing as of the Closing) and (ii) cannot be or has not been cured within thirty (30) Business Days after the Company’s, EFIH’s, Oncor’s and Oncor Holdings’ receipt of written notice thereof from Parent; provided, however, that the termination right in this clause (b) shall not apply if either Parent or the Merger Subs is then in breach of this Agreement or the Oncor Letter Agreement in a manner that would result or has resulted in any of the conditions set forth in Section 7.1 or Section 7.3 not being satisfied; (c) if the Company and/or EFIH fail to consummate the Closing on or prior to the date required by Section 1.4; provided, however, that the termination right in this clause (c) shall not apply if either Parent or the Merger Subs is then in breach of this Agreement or the Oncor Letter Agreement in a manner that would result or has resulted in the failure to consummate the Closing; (d) if the Company or EFIH files or expressly supports in the Bankruptcy Court a plan of reorganization that is inconsistent in any substantive legal or economic respect with this Agreement and the Plan of Reorganization and such inconsistency cannot be or has not been cured within thirty (30) Business Days after the Company’s or EFIH’s receipt of written notice thereof from Parent (which notice must occur within five (5) Business Days of the filing of such Plan); (e) if the Bankruptcy Court enters an order, or if the Company or EFIH files a motion seeking entry of an order, approving any sale or other disposition (other than a sale or other disposition permitted by this Agreement) of (i) any material portion of the assets of the Company or its Subsidiaries or (ii) any equity interests in EFIH or any of its Subsidiaries (including the Oncor Entities), to any Person(s) other than Parent, the Merger Subs or any of their respective Affiliates; (f) if a trustee is appointed in the Chapter 11 Cases pursuant to Section 1104 of the Bankruptcy Code; (g) if any Chapter 11 Case, other than the cases relating to (i) LSGT Gas Company LLC, (ii) EECI, Inc., (iii) EEC Holdings, Inc., and (iv) LSGT SACROC, Inc., is dismissed or converted to a case under Chapter 7 of the Bankruptcy Code and neither such dismissal or conversion contemplates the Closing Date Transactions and the other transactions contemplated by this Agreement; (h) if any of the following actions are not completed within the applicable time period specified below: (i) the Plan of Reorganization or the motion for entry of the Approval Order is not filed with the Bankruptcy Court by July 11, 2017; (ii) the Bankruptcy Court does not enter the Approval Order within forty-five (45) days of the date of this Agreement; provided that entry of such order shall be deemed to occur upon an oral indication by the earlier Bankruptcy Court that it is approving or will approve the E-Side Debtors’ entry into and performance and agreement under this Agreement, including but not limited to payment and satisfaction of the Termination Fee pursuant to the terms hereof; (xiii) the 30th day following Bankruptcy Court does not enter the Disclosure Statement Order by September 5, 2017; provided, that, entry of such notice order shall be deemed to occur upon an oral indication by the Bankruptcy Court that it is approving or will approve the Disclosure Statement and solicitation materials as containing “adequate information” as required by section 1125 of the Bankruptcy Code; or (yiv) the Termination DateBankruptcy Court does not enter the EFH Confirmation Order by December 15, 2017; provided, that, entry of such order shall be deemed to occur upon an oral indication by the Bankruptcy Court that it is approving or will approve confirmation of the Plan of Reorganization; provided however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(bsubclause 8.4(h)(i), (h)(ii), (h)(iii), or (h)(iv) if above unless Parent is then in breach of any of its representations, warranties, covenants or agreements under delivers written notice to the Company and EFIH that it intends to terminate this Agreement in a manner such that within forty-five (45) days following the conditions applicable date set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days)such subclause. (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This (i) If Parent terminates this Agreement may be terminated under (x) Section 10.1(d) (Target Breach) or (y) Section 10.1(b) (Effective Time has not occurred on or prior to Termination Date) at a time that a Target Breach exists, and in each case, within twelve months after such termination of this Agreement: (A) a transaction is consummated, which transaction, if offered or proposed, would constitute a Target Acquisition Proposal, (B) a definitive agreement (the execution and delivery of which has been authorized by the boards of directors, or comparable bodies) that would if consummated constitute a Target Acquisition Proposal is entered into or (C) (X) any Person acquires beneficial ownership or the right to acquire beneficial ownership of, or any “group” (as such term is defined under Section 13(d) of the Exchange Act and the Mergers may be abandoned at any time prior rules and regulations promulgated hereunder), shall have been formed that beneficially owns, or has the right to the First Effective Time by action acquire beneficial ownership of, outstanding shares of capital stock of Target then representing 50% or more of the combined power to vote generally for the election of directors, and (Y) Target’s Board of Directors has taken any action for the benefit of such person, that facilitates the acquisition by such person or group of such beneficial ownership, then Target shall promptly (and no later than one business day after the first to occur of any of clauses (A)-(C) above) pay to Parent if:a termination fee of $10 million (the “Target Termination Fee”), plus Parent’s Expenses up to $2 million (the “Target Expense Cap”). (aii) If (x) Parent terminates this Agreement under Section 10.1(g) (change of recommendation; recommendation of Target Acquisition Proposal; failure to reject; breach of Sections 7.2(a)) and at the Board date of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will termination Target does not have the right to terminate this Agreement pursuant to this under Section 7.04(a) if the Company Requisite Vote has been obtained; or 10.1(b), (b) there has been a breach of any representationc), warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a(e) or 6.02(b(f) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Target or Parent shall not have the right to terminate terminates this Agreement pursuant to this Section 7.04(b10.1(h) if (Target Superior Proposal), Target shall promptly (and in any event no later than one business day after such termination) pay to Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior Termination Fee plus Parent’s Expenses up to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)Target Expense Cap.

Termination by Parent. This Agreement Plan may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board board of Directors directors of Parent ifParent: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this AgreementPlan, or any such representation and warranty shall have become untrue after the date of this AgreementPlan, such that Sections 6.02(aSection 6.2(a) or 6.02(b6.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following within 30 days after written notice thereof is given by Parent to the Company from Parent of such breach or failure by Company; (b) if the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent Merger shall not have been consummated by the twelve month anniversary of the date hereof (the “Termination Date”), provided that the right to terminate this Agreement pursuant to this Section 7.04(b) Plan shall not be available if Parent is then has breached in breach of any of material respect its representations, warranties, covenants or agreements obligations under this Agreement Plan in a any manner such that shall have proximately and substantially contributed to the conditions set forth in Section 6.03(a) or Section 6.03(b) would not occurrence of the failure of the Merger to be satisfied (unless capable of being cured within 30 days).consummated; (c) if the approval of the Company’s shareholders required by Section 6.1(a) shall not have been obtained at its shareholders’ meeting or at any time prior adjournment or postponement thereof; (d) if any order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable (whether before or after the approval by the shareholders of the Company); or (e) if (1) the board of directors of the Company has failed to recommend that the shareholders of the Company vote in favor of this Plan and the transactions contemplated hereby or has withdrawn, modified or qualified such recommendation in a manner adverse to Parent Requisite Vote being obtained(or has resolved to take such action), (i2) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required has failed to be paid pursuant substantially comply with its obligations under Section 5.2 or 5.6, or (3) the board of directors of the Company has publicly recommended or endorsed an Acquisition Proposal other than the Merger (or has resolved to Section 7.05(ctake such action).

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) (i) the Board of Directors representations and warranties of the Company shall not be true and correct or the Company shall have made breached or failed to perform any of its covenants or agreements contained in this Agreement (other than Section 7.2 and Section 7.4), which failure to be true and correct, breach or failure to perform (A) would give rise to the failure of a Company Change condition set forth in Recommendation; providedSection 8.1 or Section 8.2 and (B) cannot be cured by the Termination Date, howeveror if capable of being cured, that Parent will shall not have been cured by the right earlier of the Termination Date and thirty (30) days following receipt by the Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.04(a9.4(a) if and the basis for such termination; (ii) the Company Requisite Vote has shall have breached in any material respect its obligations under Section 7.4 or (iii) the Company shall have breached in any material respect its obligations under Section 7.2, and such breach shall not have been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made cured within 30 days following receipt by the Company in this Agreementof a notice pursuant to sub-clause (i); provided, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b9.4(a)(i) if Parent it is then in material breach of any of its representations, warranties, covenants or other agreements under this Agreement hereunder that would result in a manner such that the conditions to Closing set forth in Section 6.03(a) 8.1 or Section 6.03(b) would 8.3 not be satisfied (unless capable of being cured within 30 days).satisfied; or (cb) at any time prior the Special Committee, whether or not permitted to the Parent Requisite Vote being obtaineddo so by this Agreement, shall have (i) if effected a Change of Recommendation, or resolved to take such action or (ii) authorized the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, Company to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Merger 1 Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b1) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(athe condition specified in Section 6.2(a) or 6.02(bSection 6.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by within the earlier of (xi) 30 days after written notice thereof is given by Parent to the 30th day following such notice Company, and (yii) the Termination Date; ; (2) prior to obtaining the Requisite Parent Vote, if the Parent Board makes a Parent Adverse Recommendation Change in accordance with Section 5.3(d), provided that such termination shall not be effective until Parent has paid the Parent Termination Fee due under Section 7.5; (3) if, after the date hereof and prior to obtaining the Requisite Company Vote, (i) the Company Board or any committee thereof shall have effected a Company Adverse Recommendation Change, (ii) any Person shall have first publicly announced a Company Acquisition Proposal (or made any material modification thereto) and the Company Board or any committee thereof fails to publicly reaffirm the approval, recommendation or declaration of advisability by the Company Board of this Agreement, the Mergers or any of the other transactions contemplated hereby within five business days (or if the Company Stockholder Meeting is scheduled to be held within five business days from the date of such announcement, promptly and in any event prior to the date on which the Company Stockholders Meeting is scheduled to be held) of being requested to do so by Parent (it being understood that Parent shall not have be entitled to make such request on more than one occasion per Company Acquisition Proposal or per each subsequent material modification thereof), or (iii) the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of Company Board or any committee thereof approves, adopts, publicly endorses, declares advisable or recommends, or enters into or allows the Company or any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, Subsidiaries to enter into an a Company Alternative Parent Acquisition Agreement relating to any Company Acquisition Proposal (other than a Company Acceptable Confidentiality Agreement in accordance with respect to a Parent Superior Proposal that did not result from a material breach of this AgreementSection 5.2), or (iiiv) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds shall have materially breached or violated any fees required to be paid pursuant to of its obligations under Section 7.05(c)5.2; or (4) if any Company Material Adverse Effect shall have occurred.

Termination by Parent. This Agreement may be terminated by Parent and the Mergers Offer and the Merger may be abandoned at any time prior to the First Effective Acceptance Time by action of the Board of Directors of Parent if: (a) the Board board of Directors directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if of Recommendation or the Company Requisite Vote has been obtained; orshall have breached any of its obligations under Section 6.2 in any material respect; (b) at any time following receipt or public announcement of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm the Company Recommendation within five business days after receipt of any reasonable written request to do so from Parent; (c) a tender offer or exchange offer for thirty-five percent or more of the outstanding Shares (other than by Parent or an Affiliate of Parent) shall have been commenced and, within 10 business days after the commencement of such tender or exchange offer pursuant to Rule 14d-2 under the Exchange Act, the Company’s board of directors fails to recommend against acceptance of such offer; (d) there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company contained in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(athe conditions set forth in clauses (ii) or 6.02(band (iii) of Annex B would not be satisfied and and, in either such case, such breach or failure to be true is not curable or, if curable, is not incapable of being cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date, or if capable of being cured by the Termination Date is not so cured; provided provided, that Parent shall have given the Company at least 30 days written notice prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 8.5(d); provided, further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.5(d) if Parent or Acquisition Sub is then in material breach of any of its representations, warranties, covenants or agreements under contained in this Agreement Agreement; or (e) Parent has notified the Company in a manner such writing that it or Acquisition Sub desires to waive the condition set forth in clause (i) of Annex B and that all other conditions set forth in Section 6.03(a) on Annex B have been satisfied or Section 6.03(b) would not be satisfied waived (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iiiunder Applicable Laws) prior to or concurrently with such termination, Parent pays to and the Company either does not provide Parent with written consent to waive such condition as provided in immediately available funds any fees required to be paid pursuant to Section 7.05(cAnnex B within two business days of receipt of such notification or unreasonably conditions such waiver (as determined by Parent in its sole discretion), it being understood and agreed that if such condition is waived as provided herein, the Offer shall remain open for at least five business days from the date such waiver has been made and the related restrictions or limitations imposed by FINRA are disclosed by the parties, or such shorter time as the parties mutually agree, after consultation with their counsel.

Termination by Parent. This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent if: (a) (i) the Board of Directors representations and warranties of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if be true and correct or the Company Requisite Vote has been obtained; or (b) there has been a breach shall have breached or failed to perform any of any representation, warranty, covenant its covenants or agreement made by the Company agreements contained in this Agreement, or any such representation which failure to be true and warranty shall have become untrue after the date of this Agreementcorrect, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice perform (A) would give rise to the Company from failure of a condition set forth in Section 7.1 (Conditions to Each Party's Obligations to Effect the Merger) or 7.2 (Conditions to Obligations of Parent and Merger Sub) and (B) cannot be cured by the Termination Date, or if capable of being cured, shall not have been cured within (x) 15 days following receipt of written notice of such breach from Parent or failure by the earlier of (x) the 30th day following such notice and (y) any shorter period of time that remains between the date Parent provides written notice of such breach and the Termination Date; provided or (ii) the Company shall have breached in any material respect its obligations under Section 6.4 (No Solicitation of Transactions), which breach (A) would give rise to the failure of a condition set forth in Section 7.1 (Conditions to Each Party's Obligations to Effect the Merger) or 7.2 (Conditions to Obligations of Parent and Merger Sub) and (B) cannot be cured by the Termination Date, or if capable of being cured, shall not have been cured within (x) 10 days following receipt of written notice of such breach from Parent or (y) any shorter period of time that remains between the date Parent provides written notice of such breach and the Termination Date; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b8.4(a) if Parent it or Merger Sub is then in material breach of any of its representations, warranties, covenants or other agreements under this Agreement hereunder that would result in a manner such that the conditions to Closing set forth in Section 6.03(a7.1 (Conditions to Each Party's Obligations to Effect the Merger) or Section 6.03(b7.3 (Conditions to Obligations of the Company) would not be satisfied (unless capable of being cured within 30 days).satisfied; or (cb) at any time prior to the Parent Requisite Vote being obtained, (i) if the Company Board, whether or not permitted to do so by this Agreement, shall have (i) failed to include the Company Board Recommendation in the Proxy Statement or shall have effected a Change of Directors of Parent authorizes ParentRecommendation or Company Adverse Recommendation Change, or shall have resolved to take any such action; (ii) the extent permitted by and subject to complying with the terms of Section 5.03, to enter Company shall have entered into an Alternative Parent Acquisition Agreement with respect or take any other action referred to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of in Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and 6.4(c)(iii)(B)(x); or (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds or the Company Board shall have publicly announced its intention to do any fees required to be paid pursuant to Section 7.05(c)of the foregoing.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at any time prior to the First Effective Time by action of the Board of Directors of Parent Parent, at any time prior to the Effective Time, before or after the approval by the stockholders of the Company, if (a) the Company shall have failed to comply in any material respect with any of the covenants or agreements contained in Article 2, Article 6 and Article 7 of this Agreement to be complied with or performed by the Company at or prior to such date of termination; provided, however, that if such failure to comply is capable of being cured prior to the End Date, such failure shall not have been cured within thirty (30) days of delivery to the Company of written notice of such failure, (b) there exists a breach or breaches of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 8.2(a) would not be satisfied; provided, however, that if such breach or breaches are capable of being cured prior to the End Date, such breaches shall not have been cured within thirty (30) days of delivery to the Company of written notice of such breach or breaches, or (c) a Company Triggering Event (as defined below) shall have occurred. For the purposes of this Agreement, a “Company Triggering Event” shall be deemed to have occurred if: : (a) the Board of Directors of the Company or any committee thereof shall for any reason have withdrawn or shall have made amended or modified in a Company Change manner adverse to Parent its recommendation in Recommendationfavor of, the adoption and approval of the Agreement or the approval of the Merger; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.04(a) if the Company Requisite Vote has been obtained; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and warranty shall have become untrue after failed to include in the date Proxy Statement/Prospectus the recommendation of this Agreement, such that Sections 6.02(a) or 6.02(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days). (c) at any time prior to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by Company in favor of the adoption and subject to complying with approval of the terms Agreement and the approval of Section 5.03, to enter into an Alternative Parent Acquisition Agreement the Merger; (c) the Board of Directors of the Company or any committee thereof shall have approved or recommended any Superior Proposal with respect to the Company; or (d) a Parent Superior Proposal that did not result from a material breach tender or exchange offer relating to securities of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required shall have been commenced by a Person unaffiliated with Parent and the Company shall not have sent to be paid its securityholders pursuant to Section 7.05(c)Rule 14e-2 promulgated under the Exchange Act, within ten (10) business days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company recommends rejection of such tender or exchange offer.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned at by Parent (with any time termination by Parent constituting an effective termination by Merger Sub): (i) if, prior to the First Effective Time by action of the Board of Directors of Parent if: (a) the Board of Directors of Appointment Time, the Company shall have made a Company Change has breached or failed to perform any of its covenants or other agreements contained in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant (other than as set forth in Section 8.1(c)(ii)) to this Section 7.04(a) if be complied with by the Company Requisite Vote has been obtained; or (b) Company, or there has been exists a breach of any representation, warranty, covenant representation or agreement made by warranty of the Company contained in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(a) or 6.02(b) any of the Offer Conditions set forth in Annex I would not be satisfied and such breach or failure to be true is not curable or, if curable, perform (A) is not cured following within 30 days after receipt of written notice to the Company from Parent of such breach thereof or failure by the earlier of (xB) the 30th day following such notice and (y) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable incapable of being cured within 30 days).by the Company by the Outside Date; (c) at any time prior to the Parent Requisite Vote being obtained, (iii) if (A) the Board of Directors of Parent authorizes Parentthe Company or any committee thereof has made a Company Adverse Recommendation Change, to (B) the extent permitted by and subject to complying with Company has breached the terms provisions of Section 5.035.2, (C) the Company or its Board of Directors (or any committee thereof) shall approve or recommend, or enter into or allow the Company or any of the Company Subsidiaries to enter into into, an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal Company Takeover Proposal, (D) any tender offer or exchange offer is commenced by any third party with respect to the outstanding Company Common Stock prior to the Appointment Time, and the Board of Directors of the Company shall not have recommended that did the Company’s stockholders reject such tender offer or exchange offer and not result from tender their Company Common Stock into such tender offer or exchange offer within ten business days after commencement of such tender offer or exchange offer, unless the Company has issued a material breach press release that expressly reaffirms the Company Recommendation within such ten business day period or (E) the Company or its Board of Directors (or any committee thereof) shall publicly propose or announce its intentions to do any of actions specified in clauses (A) through (D) of this Agreement, Section 8.1 (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and c)(ii); or (iii) if, prior to or concurrently with such terminationthe Appointment Time, Parent pays to there shall have occurred a Material Adverse Effect on the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c)incapable of being cured by the Outside Date.

Termination by Parent. This Agreement may be terminated terminated, and the Mergers Merger may be abandoned by Parent, with written notice to the Company: (a) at any time prior to the First Effective Time by action of time that the Board of Directors of Parent if: Company Requisite Vote is obtained, (ai) the Board of Directors of the Company shall have made effected a Change of Recommendation, (ii) the Company Change or the Board of Directors of the Company (or any committee thereof) shall (x) publicly approve, adopt or recommend any Acquisition Proposal or (y) approve or recommend, or enter into or allow the Company or any of its Subsidiaries to enter into, a letter of intent, agreement in Recommendation; providedprinciple or definitive agreement for an Acquisition Proposal, however(iii) the Company shall have breached, in any material respect, any of its obligations under Section 4.2, (iv) the Company shall have failed to include the Company Recommendation in the Proxy Statement distributed to stockholders, (v) the Company or the Board of Directors of the Company (or any committee thereof) shall formally authorize or publicly propose any of the foregoing in clauses (i) through (v), or (vi) in the event a tender or exchange offer for Common Shares that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent will and, within ten (10) Business Days after the public announcement of such Acquisition Proposal, the Company shall not have the right to terminate this Agreement filed a Schedule 14D-9 pursuant to this Section 7.04(a) if Rule 14e-2 and Rule 14d-9 under the Company Requisite Vote has been obtained; orExchange Act recommending that the holders of Common Shares reject such Acquisition Proposal and not tender any Common Shares into such tender or exchange offer; (b) at any time prior to the Effective Time, there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation and or warranty shall have become untrue after the date of this Agreement, such that Sections 6.02(athe conditions set forth in Section 5.2(a) or 6.02(bSection 5.2(b) would not be satisfied and such breach or failure to be true condition is not curable or, if curable, is not cured following notice prior to the Company from Parent of such breach or failure by the earlier of (xi) thirty (30) days after written notice thereof is given by Parent to the Company and (ii) the 30th day following such notice and date that is three (y3) Business Days prior to the Termination End Date; provided provided, however, that Parent shall and Merger Sub are not have the right to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of this Agreement so as to cause any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a5.1, Section 5.3(a) or Section 6.03(b5.3(b) would not to be satisfied (unless capable of being cured within 30 days).satisfied; or (c) at any time prior to if, since the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach date of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for there shall have been a Parent Superior Proposal Company Material Adverse Effect that did cannot result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required reasonably be expected to be paid pursuant to Section 7.05(c)cured by the End Date.

Termination by Parent. This Agreement may be terminated and the Mergers may be abandoned by Parent at any time prior to the First Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the Board of Directors of Parent if:Company): (a) the Board of Directors of if (i) a Company Adverse Recommendation Change shall have occurred (whether due to a Superior Proposal or a Company Intervening Event), (ii) the Company shall have made entered into, or publicly announced its intention to enter into, a Company Change Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) the Company shall have breached or failed to perform in Recommendation; providedany material respect any of the covenants and agreements set forth in Section 5.5, however(iv) the Company Board fails to reaffirm (publicly, that if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer relating to Company Common Stock shall have been commenced by a Person unaffiliated with Parent will and the Company shall not have the right sent to terminate this Agreement its stockholders pursuant to Rule 14e-2 under the Securities Act, within ten (10) Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, or (vi) the Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of the actions specified in this Section 7.04(a) if the Company Requisite Vote has been obtained; or7.3(a); (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, Agreement such that Sections 6.02(athe conditions to the Closing of the Merger set forth in Section 6.2(a) or 6.02(b) Section 6.2(b), as applicable, would not be satisfied and and, in either such case, such breach or failure to be true is not curable or, if curable, is not incapable of being cured following notice to the Company from Parent of such breach or failure by the earlier of (x) the 30th day following such notice and (y) the Termination End Date; provided that Parent shall not have given the right Company at least thirty (30) days’ written notice prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 7.04(b) if Parent is then in breach of any of its representations, warranties, covenants or agreements under this Agreement in a manner such that the conditions set forth in Section 6.03(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days7.3(b).; or (c) if the Stockholder Consent, duly executed by stockholders holding at any time least 51% of the aggregate voting power of the Company Common Stock, shall not have been delivered to Parent and the Company prior to 5:00 p.m. Birmingham, AL time on the Parent Requisite Vote being obtained, (i) if calendar day immediately following the Board of Directors of Parent authorizes Parent, to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach date of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, Parent pays to the Company in immediately available funds any fees required to be paid pursuant to Section 7.05(c).

Termination by Parent. (a) This Agreement may be terminated and the Mergers Merger may be abandoned at any time prior to the First Effective Time by action Parent if (i) the Company Board or any committee thereof makes a Change of Recommendation, (ii) the Company or the Company Board or any committee thereof shall have (x) approved, adopted, recommended, or declared advisable any Acquisition Proposal or (y) approved or recommended, or entered into or allowed the Company to enter into, an Alternative Acquisition Agreement, (iii) the Company Board or any committee thereof formally resolves to take or publicly announces an intention to take any of the Board of Directors of Parent if: foregoing actions or (aiv) the Board Company breaches or fails to perform in any material respect any of Directors of the Company shall have made a Company Change in Recommendation; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this its material obligations under Section 7.04(a) if the Company Requisite Vote has been obtained; or5.3; (b) This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by Parent if there has been a breach of any representation, representation or warranty, or failure to perform or comply with any covenant or agreement agreement, made by the Company in this Agreement, or any such representation and warranty shall have become untrue after which (i) would give rise to the date failure of this Agreement, such that Sections 6.02(aa condition set forth in Section 6.2(a) or 6.02(bSection 6.2(b) would and (ii) (x) cannot be satisfied and such breach or failure to be true is not curable or, if curable, is not cured following notice to by the Company by the Termination Date or (y) if capable of being cured, shall not have been cured within the earlier of (A) thirty (30) calendar days following receipt of written notice from the Parent of such breach or failure by to perform or comply and (B) one (1) Business Day prior to the earlier of (x) the 30th day following such notice and (y) the Termination DateDate and the date on which the Agreement may otherwise be terminated by the Company in accordance with this Article VII; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.04(b7.4(b) if Parent it or Merger Sub is then in material breach of any of its representations, representations or warranties, or has failed to perform or comply with in all material respects any covenants or agreements under this Agreement in other agreements, hereunder, which breach or failure to perform or comply would give rise to the failure of a manner such that the conditions condition set forth in Section 6.03(a6.3(a) or Section 6.03(b) would not be satisfied (unless capable of being cured within 30 days6.3(b).; or (c) at any time prior This Agreement may be terminated and the Merger may be abandoned by Parent if, on the Initial Availability Determination Date (if occurring not more than two (2) days before or after a particular Minimum Excess Availability Determination Date) or on the Subsequent Availability Determination Date, the Excess Availability (as calculated in accordance with Section 5.4(d)) is less than the applicable Minimum Excess Availability; provided, that if Parent fails to the Parent Requisite Vote being obtained, (i) if the Board of Directors of Parent authorizes Parent, exercise its right to the extent permitted by and subject to complying with the terms of Section 5.03, to enter into an Alternative Parent Acquisition Agreement with respect to a Parent Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement, Parent, subject to complying with the terms of Section 5.03, enters into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from a material breach of terminate this Agreement and pursuant to this Section 7.4(c) within two (iii2) prior to or concurrently with such termination, Parent pays to Business Days of its receipt from the Company in immediately available funds of the calculation of Excess Availability on the Initial Availability Determination Date (if occurring not more than two (2) days before or after a particular Minimum Excess Availability Determination Date) or on the Subsequent Availability Determination Date, such termination right shall become null and void and shall no longer be of any fees required to be paid pursuant to Section 7.05(c)force or effect.