Common use of Termination by Parent Clause in Contracts

Termination by Parent. Subject to the other provisions of this Article IX, this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by Parent: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by ParentParent if: (a) at any time prior to the Company Requisite Vote having been obtained, (i) the board of directors of the Company shall have made a Company Change in Recommendation, (ii) the Company shall have failed to include the Company 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 6.2; or (b) at any time prior to the Effective Time, whether before or after the adoption of this Agreement by the stockholders of Parent referred to in Section 7.1(a), by action of the board of directors of Parent, if 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions any condition set forth in Section 8.2(aSections 7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct is not curable or, if curable, is not cured 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 following notice to the giving of written notice Company from Parent of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) the date that is three (3) Business Days prior to the Outside Termination Date), whether before or after the Requisite Company Vote has been obtained; provided that Parent shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i8.4(b) if the Company Board shall have effected a Change Parent is then in material breach of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations representations, warranties, covenants or agreements under Section 7.2this Agreement.

Termination by Parent. Subject Parent shall have the right to the other provisions of terminate this Article IX, this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by ParentAgreement: (ai) in the event that the Company Board or a committee thereof has made a Company Adverse Recommendation Change; provided, however, that Parent shall not have the right to terminate this Agreement under this Section 8.01(d)(i) after the Company Shareholder Approval is obtained at the Company Shareholders Meeting; or (ii) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreementbreaches or fails to perform any of its covenants or agreements contained herein, or if any representation of the representations or warranty warranties of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure contained herein fails to be true and correct correct, which breach or failure (1) would give rise to the failure of a condition set forth in Section 7.03(a) or Section 7.03(b), as applicable, and (2) is not curable prior reasonably capable of being cured by the Company by the End Date (as it may be extended pursuant to Section 8.01(b)(i)) or is not cured by the Outside Date, or if curable prior to the Outside Date, has not been cured Company within the earlier of (i) thirty (30) days after the giving of receiving written notice of such breach or failure by failure; provided, however, that Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to under this Section 9.4(a8.01(d)(ii) shall not be available to Parent if either Parent or Merger Sub has breached is then in any material respect breach of any representation, warranty, covenant or agreement set forth in this Agreement and contained herein such breach shall have proximately caused the failure of that the conditions set forth in Section 8.2(a7.02(a) or Section 8.3(b7.02(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2as applicable, could not then be satisfied.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated terminated, and the transactions contemplated by this Agreement Merger may be abandoned abandoned, by Parent if: (a) at any time prior to the Effective Time by Parent: (a) if Time, there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue is inaccurate or incorrect following becomes inaccurate after the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or inaccuracy would cause a failure of a condition set forth in Section 6.1 or Section 6.2 if the Closing were to be true occur at such time, and correct such breach or inaccuracy is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been capable of being cured within before the earlier of (i) the Outside Date and (ii) thirty (30) days after following receipt by the giving Company of written notice from Parent of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing inaccuracy or, if such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date)inaccuracy is capable of being cured within such period, whether before or after the Requisite Company Vote it has not been obtainedcured within such period; provided provided, however, that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a7.4(a) shall will not be available to Parent if either Parent is then in material breach of any of its representations, warranties, covenants or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in agreements under this Agreement and such breach shall have proximately caused the failure as to cause or result in either of the conditions set forth in Section 8.2(a6.3(a) or Section 8.3(b)6.3(b) not being satisfied; or (b) at any time prior to the time receipt of the Requisite Company Vote is obtainedStockholder Approval, (i) if the Company Board shall have effected or any committee (including the Special Committee) thereof effects a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Board Recommendation.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned by Parent at any time prior to the Effective Time Closing, notwithstanding the adoption of this Agreement by Parentthe stockholders of the Company or Merger Sub, by written notice to the Company: (a) if there the Company has been a breach of breached any representation, warranty, covenant or agreement made by the Company set forth contained in this Agreement, or if any representation or warranty of the Company shall have has become untrue or incorrect following the date of this Agreementuntrue, in either case each case, such that the conditions set forth in Section 8.2(a6.3(a) or and Section 8.2(b) 6.3(b), as the case may be, would not be satisfied (and such breach or failure is incapable of being cured by the Outside Date or is not cured in accordance with the following proviso; provided, however, that Parent may not terminate this Agreement pursuant to this Section 7.4(a) unless any such breach or failure to be true and correct is has not curable been cured within twenty (20) days after written notice by Parent to the Company informing the Company of such breach or failure or if less than twenty (20) days prior to the Outside Date, or if curable by the Outside Date, except that no cure period shall be required for a breach which by its nature cannot be cured prior to the Outside Date; and provided, has further, that Parent may not been cured within the earlier of (i) thirty (30) days after the giving of written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a7.4(a) shall not be available to Parent if either Parent or Merger Sub has breached is then in breach of this Agreement in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b)respect; or (b) at any time prior to the time the Requisite Company Vote is obtained, if (i) if the Company Board shall have effected a Change of Board Recommendation shall have occurred (it being understood and agreed that, for all purposes of this Agreement, a communication in accordance with Rule 14d-9(f) of the Exchange Act, or any similar communication to the stockholders of the Company in connection with the commencement of a tender offer or exchange offer, shall not be deemed to constitute a Change of Board Recommendation (so long as any action or statement made to so comply is consistent with Section 5.4)) or (ii) the Company Board shall have otherwise failed to include the Company Board Recommendation in the Proxy Statement distributed to stockholders (it being agreed that the taking of any action by the Company, the Company Board or any of its Representatives knowingly and intentionally breaches any of its obligations expressly permitted under Section 7.25.4(b), Section 5.4(c) or Section 5.8(e)(ii) shall not give rise to a right to terminate pursuant to this Section 7.4(b)); provided, however, that Parent will not have a right to terminate this Agreement pursuant to this Section 7.4(b) if the Requisite Stockholder Approval shall have been obtained.

Termination by Parent. Subject to the other provisions of this Article IX, this Agreement may be terminated and the transactions contemplated by this Agreement Transactions may be abandoned at any time prior to the Effective Time by Parent: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) Offer Conditions would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three five Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement Transactions pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub it has breached in any material respect any representation, warranty, covenant or agreement its obligations set forth in this Agreement and such breach shall have proximately in a manner that has primarily caused the occurrence of the failure of a condition to the conditions set forth in Section 8.2(a) or Section 8.3(b)Closing to occur; or (b) at any time prior to the time the Requisite Company Vote is obtainedExpiration Time, if (i) if the Company Board shall have effected a Change of Recommendation or Recommendation, (ii) the Company or any of its Representatives knowingly and intentionally breaches shall have committed a material breach of Section 7.2 or (iii) the Company Board has caused or permitted the Company or any of its obligations under Section 7.2Subsidiaries to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal or the Company enters into or causes any of its Subsidiaries to enter into an Alternative Acquisition Agreement.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by Parent: action of the board of directors of Parent if (a) if (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors 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, (iv) 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 of directors 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 Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this AgreementAgreement (other than Section 6.2), or if any such representation or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct condition is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (i) thirty (30) 30 days after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Company.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time Time, by Parentaction of the board of directors of Parent after consultation with its legal advisors, if: (ai) if the board of directors of the Company shall have withdrawn, modified or changed, in a manner adverse to Parent, the board's approval or recommendation of the Merger or recommended approval of a Company Acquisition Proposal, or resolved to do any of the foregoing; (ii) the Company shall have breached Section 6.1 in any material respect, and Parent shall have been adversely affected thereby; or (iii) (A) there has been a breach by the Company of any representation, warranty, warranty covenant or agreement made by the Company set forth in this Agreement, Agreement or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreementuntrue, in either case such that the conditions set forth in Section 8.2(a7.3(a) or Section 8.2(b) would will not be satisfied at the Closing Date and (and B) such breach or failure to be true and correct is not curable prior to the Outside Datecurable, or or, if curable prior to the Outside Datecurable, has is not been cured within the earlier of (i) thirty (30) 30 days after the giving of written notice of such breach or failure is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtainedCompany; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(aclause (iii) shall not be available to Parent if either Parent or Merger Sub has breached it, at such time, is in any material respect breach of any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of that the conditions set forth in Section 8.2(a7.2(a) or will not be satisfied at the Closing Date. 5. Section 8.3(b); or (b8.5(a) at any time prior to of the time Agreement is hereby deleted and replaced in its entirety by the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2.following:

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by ParentParent if: (a) the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 8.2(a) [Representations and Warranties] or 8.2(b) [Performance of Obligations], and (ii) is incapable of being satisfied or cured by the Company prior to the Termination Date or, if there has been a capable of being satisfied or cured, is not satisfied or cured by the Company within thirty (30) calendar days following receipt of written notice from Parent of such breach or failure to perform (“Company Terminable Breach”); provided that Parent is not then in Parent Terminable Breach of any representation, warranty, covenant or other agreement made by the Company set forth Parent contained in this Agreement; (b) prior to the receipt of the Required Parent Vote, the Board of Parent (or if any representation committee thereof) shall have approved, and Parent shall concurrently enter into, a definitive agreement providing for the implementation of a Parent Superior Proposal, provided that Parent shall have complied with its obligations under Section 7.12 and shall have paid (or warranty shall concurrently pay) the fee due under Section 9.5; (c) a Company Change in Recommendation (whether in respect of a Company Superior Proposal or a Company Intervening Event) has occurred; or (d) the Company shall have become untrue breached or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure failed to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached perform in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.27.11(a).

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned Parent at any time prior to the Effective Time by ParentTime: (a) if a Company Adverse Recommendation Change shall have occurred; 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 if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case Agreement such that the conditions to the Closing of the Merger set forth in Section 8.2(a6.02(a) or Section 8.2(b) 6.02(b), as applicable, would not be satisfied (and and, in either such case, such breach or failure to be true and correct is incapable of being cured or, if curable, is not curable prior to cured by the Outside Date, Company on or if curable prior to the Outside Date, has not been cured within before the earlier of (i) the End Date and (ii) thirty (30) days after following receipt by the giving Company of written notice of such breach or failure by from Parent; provided, however, that Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a7.03(b) shall not be available to Parent if either Parent it is then in material breach of any representations, warranties, covenants or Merger Sub has breached in any material respect any representationother agreements hereunder, warranty, covenant or agreement set forth in this Agreement and such breach shall not have proximately caused the failure been cured in all material respects. (c) if (i) all of the conditions set forth in Section 8.2(a6.01 and Section 6.03 (other than conditions that by their nature are to be satisfied at the Closing) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtainedhave been satisfied, (i) if the Company Board shall have effected a Change of Recommendation or (ii) Parent has irrevocably confirmed by written notice to the Company that all of the conditions set forth in Section 6.02 have been satisfied or that it is willing to waive any unsatisfied conditions in Section 6.02 and (iii) the Company willfully refuses to consummate the Merger within three (3) Business Days following the later to occur of its Representatives knowingly (x) the date the Closing should have occurred pursuant to Section 1.02 and intentionally breaches any (y) the delivery of its obligations under Section 7.2such notice.

Termination by Parent. Subject to the other provisions of this Article IXSection 9.5(a), this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by Parent: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case Agreement such that the conditions in Section Sections 8.2(a) or Section 8.2(b) would not be satisfied were the Closing then to occur (and such breach or failure to be true and correct 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) 30 days after the giving of written notice of such breach or failure thereof by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and stating Parent’s intention to terminate this Agreement and abandon the transactions contemplated by this Agreement and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached is then in breach in any material respect of any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused would cause the failure of a condition to the conditions set forth in Section 8.2(a) or Section 8.3(b)Closing to occur; or (b) at any time prior to the time the Requisite Company Vote is obtained, if (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its shall have materially breached the obligations under set forth in Section 7.27.2(a) (No Solicitation).

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger and, if applicable, the Offer, may be abandoned at any time prior to the Effective Time by Parent: (a) if the Board of Directors of the Company or any committee thereof (i) shall have made and not withdrawn a Change of Recommendation, (ii) shall have approved or recommended to the stockholders of the Company an Acquisition Proposal or (iii) fails (or the Company fails) to include the Company Recommendation in the Proxy Statement or the Schedule 14D-9; or (b) if 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such which breach or failure to be true and correct is not curable prior to inaccuracy (x) if the Outside Date, or if curable prior to the Outside Date, Offer has not been cured within the earlier of (i) thirty (30) days after the giving of written notice of such breach or failure by Parent to the Company specifying this terminated in accordance with Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date1.1(f), whether before or after the Requisite Company Vote has been obtained; provided that the right would give rise to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the a failure of the conditions any condition set forth in Section 8.2(a) or 8.2(b) or (y) if the Offer shall not have been terminated in accordance with Section 8.3(b1.1(f); , would give rise to a failure of any Tender Offer Condition set forth in clauses (3) or (4) set forth in Exhibit A, and in each case, such breach or condition is not curable or (b) at any time , if curable, is not cured prior to the time earlier of (A) thirty (30) calendar days after written notice thereof is given by Parent to the Requisite Company Vote or (B) two (2) business days prior to the Termination Date; provided, however, that Parent may not terminate this Agreement pursuant to this Section 9.4(b) if it is obtainedin material breach of any of its representations, warranties, covenants or agreements hereunder and has received notice of such breach from Company and been provided 10 days to cure such breach and has not cured such breach within the 10-day period from the date of such notice. (c) if the Environmental Report concludes that the Company is subject to a Material Environmental Obligation (“MEO”) and Parent shall have provided written notice to the Company of such determination on or before January 17, 2011. A MEO shall be an obligation for the Company to comply with Environmental Laws as in effect and interpreted on the date hereof that will result in the Company incurring environmental capital expenditures between January 1, 2011 and December 31, 2013 (the “Measurement Period”) plus environmental liabilities as accrued on the Company’s September 30, 2010 balance sheet included in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2010 (as defined and interpreted in accordance with GAAP, except that: (i) if where there is a range of reasonably possible costs and outcomes, the Company Board Environmental Consultant shall have effected a Change of Recommendation or determine the most credible cost which shall be the basis for the calculations hereunder, and (ii) for purposes of whether a cost to be incurred is estimable, in the opinion of the Environmental Consultant, where it is more likely than not that the cost will be incurred), such that individually or in the aggregate, such costs are more than $250 million in excess of the $395 million currently projected by the Company, in the Company’s additional definitive soliciting materials filed on Schedule 14A with the SEC on November 18, 2010 and the Company’s September 30, 2010 balance sheet included in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2010, for such required expenditures and accruals, taking into account the ability to mitigate such expenditures and accruals through commercially reasonable operational adjustments, such as fuel switching or decommissioning of facilities, provided however, that no more than 25% of the baseload generating capacity can be decommissioned . Parent shall base its assessment of relevant environmental capital expenditure requirements and environmental liabilities as accrued on the Company’s balance sheet on the conclusions of a written environmental report prepared by a reputable, nationally recognized environmental consulting firm selected by Parent and reasonably acceptable to the Company (“Environmental Consultant”), and which has been provided to the Company for comment at least three business days in advance of Parent providing any notice to the Company pursuant to this Section 9.4(c) (the “Environmental Report”). Company agrees that MACTEC, TRC, or any URS are all acceptable as the Environmental Consultant. No invasive soil or groundwater sampling shall be permitted in connection with preparation of its Representatives knowingly the Environmental Report or otherwise under this Agreement. (d) if the Pension Termination Liability less the Pension Asset Value exceeds $250 million; provided, that Parent shall not be permitted to terminate the Agreement pursuant to this Section 9.4(d) unless it has delivered written notice of such termination to the Company on or prior to January 17, 2011. For purposes of this Section 9.4(d), “Pension Termination Liability” means the aggregate PBGC termination liability as of December 31, 2010 for the Company’s Title IV Company Plans as determined in accordance with Section 4044 of ERISA and intentionally breaches any related regulations and the assumptions set forth on Section 9.4(d) of its obligations under the Company Disclosure Letter, and “Pension Asset Value” means the aggregate fair market value of the assets in the trusts for the Company’s Title IV Company Plans as of November 30, 2010. For the avoidance of doubt, the first sentence of this Section 7.2shall be deemed to have occurred if the consequences of effecting a standard termination of the Title IV Company Plans in accordance with Section 4041(b) ERISA, including the cost of purchasing distribution annuities and paying related administrative costs, requires additional contributions to the Title IV Company Plans of more than $250 million, in the aggregate.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by action of the Board of Directors of Parent (a)(i) if the Company Board shall have withdrawn, modified, qualified or changed the Recommendation in a manner adverse to Parent or (ii) if the Company Board approves, endorses or recommends any Acquisition Proposal other than the Merger or (iii) if the Company or the Company Board resolves or announces its intention to do any of the foregoing, in the case of any of (i), (ii) or (iii) whether or not permitted by Section 7.2; (b) if the Company (i) materially breaches its obligations under Section 7.2 or 7.3(b), or the Company Board or any committee thereof shall resolve to do any of the foregoing, or (ii) materially breaches its obligations under Section 7.3(a) and such breach is not cured within 10 days after the Company’s receipt of written notice asserting such breach or failure from Parent: ; or (ac) if there has been a breach of any other representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any such representation or and warranty of the Company shall have become untrue or incorrect following after the date execution of this Agreement, such that (i) the condition set forth in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied and (and ii) such breach or failure to be true and or correct 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) 20 business days after the giving following receipt of written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date)from Parent; provided, whether before or after the Requisite Company Vote has been obtained; provided however, that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of any such condition to be capable of satisfaction is not the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected result of a Change material breach of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2this Agreement by Parent.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time Time, whether before or after receipt of the Company Stockholder Approval, by Parentwritten notice of Parent if: (a) if a Company Adverse Recommendation Change has been effected by the Company Board (whether or not in compliance with Section 5.3); (b) the Stockholder Written Consent representing the Company Stockholder Approval has not been executed and delivered to Parent and the Company within 48 hours after execution of this Agreement; (c) the Company enters into an Alternative Acquisition Agreement; (d) the Company or the Company Board shall have resolved or otherwise publicly announced its intention to take any of the foregoing actions in clauses (a) or (c); or (e) 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 or and warranty of the Company shall have become untrue or incorrect following the date of this Agreementbe untrue, in either case such that the conditions set forth in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct either (x) is not curable prior to the Outside Dateor (y) if curable, or if curable prior to the Outside Date, has is not been cured within by the earlier of (i) thirty (30) the date that is 60 days after from the giving date of receiving written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Termination Date); provided, whether before or after the Requisite Company Vote has been obtained; provided however, that Parent shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(aclause (e) shall not be available to if Parent if either Parent or Merger Sub has breached is then in any material respect any representation, warranty, covenant or agreement set forth in breach of this Agreement and such breach shall have proximately caused the failure so as to cause any of the conditions set forth in Section 8.2(a7.3(a) or Section 8.3(b); or (b7.3(b) at any time prior not to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change be capable of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2being satisfied.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated terminated, and the transactions contemplated by this Agreement may be abandoned abandoned, at any time prior to the Effective Time (notwithstanding any approval of this Agreement by the shareholders of the Company) by Parent: (a) if, prior to the Offer Closing (i) a Company Adverse Recommendation Change shall have occurred or if the Company fails to publicly reconfirm the Company Board Recommendation if so requested by Parent within seven (7) Business Days following such request (provided such request may only be made in the event the Company has received a public announcement of an Acquisition Proposal or any amendment to an Acquisition Proposal), (ii) if there has been is a material breach of any representation, warranty, covenant Section 6.04 or agreement made by Section 6.05(a) or (iii) if the Company Board shall have resolved to do any of the foregoing or publicly announced its intention to do so; or (b) if, prior to the Offer Closing, the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or if any representation or warranty failure to perform would give rise to the failure of the Company shall have become untrue or incorrect following the date a condition set forth in paragraphs (e) and (f) of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied Exhibit A (and in each case such breach or failure to be true and correct perform is not curable prior to incapable of being cured by the Outside Date, or if curable prior to the Outside Datethrough use of reasonable best efforts, has not been cured in all material respects by the Company within the earlier of twenty (i20) thirty (30) days Business Days after the giving its receipt of written notice of such breach or failure by thereof from Parent to the Company specifying this Section 9.4(a(or, if less than twenty (20) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Outside Date).

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger and the Bank Merger may be abandoned at any time prior to the Effective Time by Parent: action of the board of directors of Parent if (a) if the board of directors of the Company shall have made a Change of Recommendation, (b) the Company shall have failed to take a vote of shareholders on the Merger prior to the time required by Section 6.4, (c) at any time following receipt of an Acquisition Proposal, the Company board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event (i) within three (3) Business Days after receipt of any written request to do so from Parent, (d) a tender offer or exchange offer for the outstanding Shares shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and, prior to the earlier of (x) the date prior to the date of the Shareholders’ Meeting and (y) three (3) Business Days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend unequivocally against acceptance of such offer or (e) 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct condition is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (ix) thirty (30) days after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (iiy) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Termination Date.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned by Parent at any time prior to the Effective Time by ParentAcceptance Time: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company has breached or failed to perform, in any material respect, any of its representations, warranties, covenants or agreements set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such which breach or failure to be true perform (x) would give rise to the failure of a condition set forth in Annex I of this Agreement and correct (y) is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been capable of being cured within the earlier of twenty (i) thirty (3020) days after following receipt by the giving Company of written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing inaccuracy or, if such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date)is capable of being cured within such period, whether before or after the Requisite Company Vote it has not been obtained; provided cured within such period, provided, however, that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of any such condition to be capable of satisfaction is not the conditions set forth in Section 8.2(a) result of a material breach of this Agreement by Parent or Section 8.3(b); orPurchaser; (b) at any time prior to the time the Requisite Company Vote is obtained, within five (i5) Business Days of a Change of Board Recommendation; (c) if the Company Board shall have effected failed to reaffirm its recommendation of this Agreement and the Offer within three (3) Business Days after receipt of any written request to do so from Parent (which request may only be made following public disclosure of an Acquisition Proposal and may only be made one time with respect to any Acquisition Proposal; provided that Parent may make such a Change of Recommendation or request with respect to any Acquisition Proposal whenever it is amended in any material respect); or (iid) if the Company or shall have intentionally breached, in any of its Representatives knowingly and intentionally breaches material respect, any of its obligations under Section 7.26.3.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the Merger and other transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time Offer Completion Date, by Parent: , if (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected (i) withdrawn or modified in a Change manner adverse to Parent or Purchaser its approval or recommendation of Recommendation this Agreement, the Offer or the Merger, (ii) approved or recommended, or proposed publicly to approve or recommend, a third-party Company Takeover 40 Proposal, (iii) caused or authorized the Company or any of its Representatives knowingly and intentionally breaches Subsidiaries to enter into a Company Acquisition Agreement, (iv) approved the breach of the Company's obligation under Section 5.2(b), or (v) resolved or publicly disclosed any intention to take any of its obligations under Section 7.2the foregoing actions, (b) there has been a material breach by the Company of any representation or warranty contained in this Agreement which is not curable or, if curable, is not cured by the Outside Date and such breach had or could reasonably be likely to have a Company Material Adverse Effect, or (c) there has been a material breach of any of the covenants set forth in this Agreement on the part of the Company, which breach is not curable or, if curable, is not cured within 15 days after written notice of such breach is given by Parent to the Company.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated upon written notice to the Company, and the transactions contemplated by this Agreement Merger may be abandoned abandoned, at any time prior to the Effective Time Time, by action of the Board of Directors of Parent, if: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth 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 of the Company shall have become untrue or incorrect following the date of this Agreementuntrue, in either case such that (i) the conditions condition set forth in Section 8.2(a7.3(a) or Section 8.2(b(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 (and ii) such breach or failure to be true and correct is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been or is incapable of being cured within twenty (20) business days following receipt by the earlier breaching Party of (i) thirty (30) days after the giving of written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b)comply; or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Board of Directors of the Company Board or any committee thereof shall have effected withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendation 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) the Board of Directors of the Company or any committee thereof shall have recommended any Acquisition Proposal, (iv) the Company or any of its Representatives knowingly and intentionally breaches any officers or directors shall have entered into discussions or negotiations in violation of its obligations under Section 7.2.6.2,

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by Parent: action of the board of directors of Parent if (a) if the board of directors of the Company shall have made a Change of Recommendation, (b) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (c) at any time following receipt of an Acquisition Proposal, the Company board of directors 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), (d) 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, at any time after the commencement of such tender or exchange offer pursuant to Rule 14d-2 under the Exchange Act, the Company board of directors comments on such offer (other than a “stop, look and listen” statement made pursuant to Rule 14d-9(f) of the Exchange Act) and fails to recommend unequivocally that stockholders of the Company not tender any of their shares into such offer or (e) 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct condition is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (ix) thirty (30) days after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (iiy) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Termination Date.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by ParentParent if: (a) 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 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; or (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 set forth in this Agreement, or if any such representation or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions any condition set forth in Section 8.2(aSections 6.2(a) or Section 8.2(b6.2(b) would not be satisfied (and such breach or failure to be true and correct is not curable or, if curable, is not cured 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 following notice to the giving of written notice Company from Parent of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) the date that is three (3) Business Days prior to the Outside Termination Date), whether before or after the Requisite Company Vote has been obtained; provided that Parent shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i7.4(b) if the Company Board shall have effected a Change Parent is then in material breach of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations representations, warranties, covenants or agreements under Section 7.2this Agreement.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement hereby may be abandoned at any time prior to the Effective Time Purchase Date, before or after the approval of the Agreement by the stockholders of the Company, by Parent: , if (a) if there has been a breach the Board of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty Directors of the Company shall have become untrue (i) withdrawn or incorrect following the date modified in a manner adverse to Parent or Purchaser its approval or recommendation of this Agreement, in either case such that the conditions Offer or the Merger or failed to reconfirm its approval or recommendation within five business days after a written request to do so, (ii) approved or recommended, or proposed publicly to approve or recommend, a third-party Company Takeover Proposal to the Company's stockholders, (iii) caused the Company to take any action referred to in Section 8.2(a5.2 that would have constituted a breach thereof but for the exceptions thereunder, including without limitation authorizing the Company to enter into a Company Acquisition Agreement, (iv) approved the breach of the Company's obligation under Section 5.2, or Section 8.2(b(v) would resolved to take any of the foregoing actions, (b) there has been a material breach by the Company of any representation or warranty contained in this Agreement which is not be satisfied (curable or, if curable, is not cured by December 31, 1999 and such breach had or failure to be true and correct would have a Company Material Adverse Effect, (c) there has been a material breach of any of the covenants set forth in this Agreement on the part of the Company, which breach is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (i) thirty (30) five days after the giving of written notice of such breach or failure is given by Parent to the Company specifying this or (d) any Person or group (as defined in Section 9.4(a13(d)(3) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(aExchange Act) or Section 8.3(b); or (b) at any time prior to other than the time the Requisite Company Vote is obtainedParent, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company Purchaser or any of its Representatives knowingly and intentionally breaches any their respective Affiliates shall have become the beneficial owner of its obligations under Section 7.2more than 10% of the shares.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned Parent at any time prior to the Effective Time by Parent:(notwithstanding any Parent Stockholder Approval or, in the case of Section 7.4(b) below, any Company Stockholder Approval): (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or if any representation or warranty failure to perform (i) would result in the failure of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions a condition set forth in Section 8.2(a) 6.1 or Section 8.2(b6.3 and (ii) would cannot be satisfied (and cured by the Termination Date; provided, that if such breach or failure to be true and correct perform is not curable prior to curable, Parent shall have given the Outside DateCompany written notice, or if curable prior to the Outside Date, has not been cured within the earlier of (i) delivered at least thirty (30) days after prior to such termination (or if such breach or failure to perform occurs within thirty (30) days of the giving of written notice Termination Date, delivered within seven (7) days of such breach or failure by Parent to of the Company specifying this Section 9.4(a) and describing date such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Dateperformance was due), whether before or after the Requisite Company Vote has been obtained; provided that the right stating Parent’s intention to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a7.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and the basis for such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b)termination; or (b) at any time if prior to the time receipt of the Requisite Company Vote is obtainedStockholder Approval, (i) if the a Company Board Adverse Recommendation Change shall have effected a Change of Recommendation or occurred, (ii) the Company shall have entered into, or publicly announced its intention to enter into, a Company Acquisition Agreement, (iii) the Company shall have in any material respect breached or failed to perform in any material respect any of the covenants and agreements set forth in Section 5.4(a), or (iv) the Company or the Company Board (or any of committee thereof) shall publicly announce its Representatives knowingly and intentionally breaches intentions to do any of its obligations under actions specified in this Section 7.27.4(b).

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated terminated, and the transactions contemplated by this Agreement Merger may be abandoned abandoned, at any time prior to the Effective Time Time, by ParentParent if: (a) if there There has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue is inaccurate or incorrect following becomes inaccurate after the date of this Agreement, in either case and such that breach or inaccuracy would cause a failure of the conditions in Section 8.2(a) 6.1 or Section 8.2(b) would not be satisfied 6.2 (and such breach or failure to be true and correct inaccuracy is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been capable of being cured within the earlier of (i) thirty (30) days after following receipt by the giving Company of written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing inaccuracy or, if such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Dateinaccuracy is capable of being cured within such period, it has not been cured within such period); provided, whether before or after the Requisite Company Vote has been obtained; provided however, that Parent will not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a7.4(a) shall not be available to Parent if either Parent it is then in material breach of any of its representations, warranties, covenants or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in agreements under this Agreement and such breach shall have proximately caused the failure of the conditions that a condition set forth in Section 8.2(a6.3(a) or Section 8.3(b6.3(b) would not then be satisfied; (b) The Company materially breaches its obligations under Section 5.3 or Section 5.4 (and such breach is not capable of being cured within five (5) days following receipt by the Company of written notice of such breach or, if such breach is capable of being cured within such period, it has not been cured within such period); or (bc) at any time prior to the time the Requisite Company Vote is obtained, (i) if the The Company Board shall have effected or any committee thereof effects a Change of Board Recommendation or (ii) the Company approves or adopts, or recommends the approval or adoption of, any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Alternative Acquisition Agreement.

Termination by Parent. Subject Parent shall have the right to the other provisions of terminate this Article IX, this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by ParentAgreement: (ai) in the event that the Company Board or a committee thereof has made a Company Adverse Recommendation Change; provided, however, that Parent shall not have the right to terminate this Agreement under this Section 8.01(d)(i) after the Company Shareholder Approval is obtained at the Company Shareholders Meeting; or (ii) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreementbreaches or fails to perform any of its covenants or agreements contained herein, or if any representation of the representations or warranty warranties of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure contained herein fails to be true and correct correct, which breach or failure (1) would give rise to the failure of a condition set forth in Section 7.03(a) (Company Representations and Warranties) or Section 7.03(b) (Company Covenants), as applicable, and (2) is not curable prior reasonably capable of being cured by the Company by the End Date (as it may be extended pursuant to Section 8.01(b)(i)) or is not cured by the Outside Date, or if curable prior to the Outside Date, has not been cured Company within the earlier of (i) thirty (30) days after the giving of receiving written notice from Parent of such breach or failure by failure; provided, however, that Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to under this Section 9.4(a8.01(d)(ii) shall not be available to Parent if either Parent or Merger Sub has breached is then in any material respect breach of any representation, warranty, covenant or agreement set forth in this Agreement and contained herein such breach shall have proximately caused the failure of that the conditions set forth in Section 8.2(a7.02(a) (Parent/Merger Sub Representations and Warranties) or Section 8.3(b7.02(b) (Parent/Merger Sub Covenants); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2as applicable, could not then be satisfied.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated terminated, and the transactions contemplated by this Agreement may be abandoned abandoned, at any time prior to the Effective Time (notwithstanding any approval of this Agreement by the shareholders of the Company) by Parent: (a) if there has been a breach of any representationif, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtainedOffer Closing, (i) if the a Company Board Adverse Recommendation Change shall have effected a Change of Recommendation or occurred, (ii) the Company or any Subsidiary of its Representatives knowingly and intentionally breaches the Company shall have entered into a Company Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) the Company shall have breached Section 6.04(e), or (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within twenty (20) 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; (b) if, prior to the Offer Closing, the Company shall have breached or failed to perform any of its obligations under Section 7.2representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform would give rise to the failure of a condition set forth in clause (b) or (c) 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 thirty (30) days after its receipt of written notice thereof from Parent); or (c) if, prior to the Offer Closing, a Company Insolvency Event occurs, which has not been dismissed within seven (7) Business Days after such occurrence.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by ParentParent if: (a) if 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions a condition set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct untruth is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (ix) thirty (30) 30 days after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (iiy) three Business Days prior to the Outside Date); provided, whether before or after the Requisite Company Vote has been obtained; provided however, that Parent shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to under this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached is then in any material respect breach of any representation, warranty, covenant or agreement set forth in this Agreement or any representation and warranty of Parent in this Agreement fails to be true and correct, in each case, such breach shall have proximately caused that it would give rise to the failure of the conditions set forth a condition in Section 8.2(a8.3(a) or Section 8.3(b); (b) prior to the time, but not after, the Requisite Stockholder Vote is obtained, if a Change of Recommendation (whether or not permitted by this Agreement) shall have been made or occurred; or (bc) at any time prior to the time the Requisite Company Stockholder Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) but not after, the Company or any director of its Representatives knowingly the Company shall have committed a willful and intentionally breaches material breach of Section 7.2(a), other than in the case where such willful and material breach is the result of an isolated action by a director of the Company without Knowledge of or consent by the Company prior to such action, and is not any of its obligations under Section 7.2other action by the Company, and (A) the Company takes appropriate actions to remedy such willful and material breach upon discovery thereof, and (B) Parent or the Transactions are not adversely affected in any material respect as a result thereof.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval by the stockholders of the Company referred to in Section 6.1(a), by action of the Board of Directors of Parent: , if (a) if the Company Board shall have withdrawn, modified in a manner adverse to Parent or failed to reconfirm within five business days after written request from Parent its approval or recommendation of this Agreement, the Option Agreement, the Support Agreement or the Merger or other transactions contemplated hereby and thereby or shall have recommended an Alternative Proposal to the Company stockholders, (b) there has been a breach of any representation(without regard to materiality, warranty, covenant Company Material Adverse Effect or agreement made similar qualifiers) by the Company set forth of any representation or warranty contained in this Agreement, or if by the Company of any representation or warranty contained in the Option Agreement or by any Shareholder of any representation or warranty contained in the Company shall have become untrue or incorrect following the date of this Support Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such which breach or failure to be true and correct is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (i) thirty (30) 30 days after the giving of written notice of such breach or failure is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date)breaching Shareholder, whether before or after the Requisite Company Vote has been obtainedas appropriate; provided that such breach, if occurring or continuing on the right to terminate this Agreement and abandon Closing Date, would constitute, individually or in the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representationaggregate with other such breaches, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b6.3(a)(ii); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (iic) there has been a material breach of any of the covenants or agreements set forth in this Agreement or the Option Agreement on the part of the Company, or any of the covenants or agreements set forth in the Support Agreement by any Shareholder, which 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 any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2the breaching Shareholder, as appropriate.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time Time, by action of the Board of Directors of Parent:, if (a) if the Board of Directors of the Company or any committee of the Board of Directors of the Company, whether or not permitted pursuant to the terms hereof, (w) shall withdraw or modify in any manner adverse to Parent its approval or recommendation of this Agreement or the Merger, (x) shall recommend or shall approve an Acquisition Transaction, or shall state that it is not recommending against or that it is unable to make a recommendation regarding an Acquisition Transaction, (y) shall furnish or disclose non-public information to or negotiate, discuss or explore with a third party with respect to any Acquisition Transaction or (z) shall resolve to take any of the actions specified in clauses (w), (x) or (y) above, 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 of any representation or warranty of contained in this Agreement that would cause the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions condition set forth in Section 8.2(a6.3(a)(ii) or Section 8.2(b) would to not be satisfied (and such satisfied, which breach or failure to be true and correct is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (i) thirty (30) 30 days after the giving of written notice of such breach or failure is given by Parent to the Company specifying this Section 9.4(aCompany, or (c) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote there has been obtained; provided that a material breach of any of the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent covenants or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement agreements set forth in this Agreement and such breach shall have proximately caused on the failure part of the conditions Company, which breach would cause the condition set forth in Section 8.2(a6.3(a)(i) or Section 8.3(b); to not be satisfied, which breach is not curable or (b) at any time prior , if curable, is not cured within 30 days after written notice of such breach is given by Parent to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Company.

Termination by Parent. Subject to the other provisions of this Article IXSection 9.5(a), this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by Parent: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section Sections 8.2(a) or Section 8.2(b) would not be satisfied were the Closing then to occur (and such breach or failure to be true and correct 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) 30 days after the giving of written notice of such breach or failure thereof by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and stating Parent’s intention to terminate this Agreement and abandon the transactions contemplated by this Agreement and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided provided, that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused would cause the occurrence of the failure of a condition to the conditions set forth in Section 8.2(a) or Section 8.3(b)Closing to occur; or (b) at any time prior to the time the Requisite Company Vote is obtained, if (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its Subsidiaries shall have materially breached the obligations under set forth in Section 7.27.2(a) (No Solicitation).

Termination by Parent. Subject to the other provisions of this Article IX, this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by Parent: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company Parent shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated hereby if: (i) prior to the receipt of the Company Stockholder Approval, the Company Board has effected a Change of Recommendation; or (ii) prior to the Closing, the Company has breached or failed to perform any of its covenants or agreements hereunder, or any of the Company’s representations or warranties hereunder fails to be true and correct, which breach or failure (A) would give rise to the failure of any condition set forth in Section 6.2(a) or Section 6.2(b) to be satisfied and (B) is not capable of being cured by the Company by the Outside Date (as it may be extended under Section 7.1(b)(i)) or, if capable of being cured by the Company by the Outside Date (as it may be extended under Section 7.1(b)(i)), is not cured by the Company within thirty (30) days after Parent delivers written notice of such breach or failure to the Company; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to under this Section 9.4(a7.1(c)(ii) shall not be available to Parent if either Parent or Merger Sub has breached is in breach of any of their respective covenants or agreements hereunder in any material respect respect, or any representationof Parent’s or Merger Sub’s respective representations or warranties hereunder fails to be true and correct in any material respect, warrantyin each case, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions that any condition set forth in Section 8.2(a6.3(a) or Section 8.3(b); or (b6.3(b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2could not then be satisfied.

Termination by Parent. Subject Parent shall have the right to the other provisions of this Article IX, terminate this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by Parent: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date)Time, whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); orStockholder Approval is obtained (except as otherwise expressly noted): (bi) at any time prior to the time receipt of the Requisite Company Vote is obtainedStockholder Approval, if (A) the Company Board (or an authorized committee thereof) makes a Company Adverse Recommendation Change, (iB) the Company is in material breach of Section 5.02 and such breach is not cured by the Company by the date that is five (5) Business Days after delivery of notice thereof by Parent to the Company or (C) the Company has failed to include the Company Board Recommendation in the Proxy Statement; or (ii) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally materially breaches any of its obligations respective covenants, agreements, representations or warranties in this Agreement, which breach (A) would reasonably be expected to prevent the satisfaction of any condition set forth in Section 6.02(a) or Section 6.02(b) and (B) either (1) is not reasonably capable of being cured by the Company by the End Date or (2) if reasonably capable of being cured by the Company by the End Date, Parent has delivered to the Company written notice of such breach and such breach is not cured by the Company by the earlier of (x) the End Date and (y) the date that is thirty (30) days after delivery of such notice; provided, however, that Parent shall not have the right to terminate this Agreement under this Section 7.27.01(d)(ii) if Parent is then in material breach of any of its covenants, agreements, representations or warranties in this Agreement, in each case, such that any condition set forth in Section 6.03(a) or Section 6.03(b), as applicable, could not then be satisfied.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned Parent at any time prior to the Effective Time by ParentTime, if: (a) if there has been a breach in any material respect of any representation, warranty, agreement or covenant or agreement made by of the Company set forth in this Agreement, or if any representation or warranty of the Company Agreement shall have become untrue or incorrect following occurred, which breach would give rise to the date failure of this Agreement, in either case such that the conditions a condition set forth in Section 8.2(a) 7.01 or Section 8.2(b) 7.02 and as a result of such breach by the Company, such condition would not be capable of being satisfied (and such breach or failure to be true and correct is not curable prior to the Outside Termination Date, or if curable prior to the Outside Datecapable of being cured, has shall not have been cured by the Company (x) within the earlier of (i) thirty (30) days Business Days after the giving of it has received written notice of such breach or failure by from Parent (it being understood that Parent shall not be permitted to terminate this Agreement pursuant to this Section 8.04(a) in respect of the breach set forth in any such written notice (A) at any time during such thirty (30) Business Day period, and (B) at any time after such thirty (30) Business Day period if the Company specifying this Section 9.4(a) and describing shall have cured such breach during such thirty (30) Business Day period) or failure in reasonable detail (y) any shorter period of time that remains between the date the Parent provides written notice of such breach and (ii) three Business Days prior to the Outside Termination Date); provided, whether before or after the Requisite Company Vote has been obtained; provided that however, that, Parent shall not have the right to terminate this Agreement and abandon pursuant to this Section 8.04(a) if either Parent or Merger Sub is then in material breach of any representations, warranties, agreements or covenants hereunder that would result in the transactions contemplated by conditions to Closing set forth in Section 7.01 or Section 7.03 not being satisfied; or (b) a Company Triggering Event shall have occurred; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.4(a8.04(b) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the Sub’s failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches fulfill any of its obligations under Section 7.2this Agreement has been a cause or, or resulted in, such Company Triggering Event.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by ParentParent if: (a) if the Company has committed a Willful and Material Breach of its obligations under Section 6.2; (b) the Company Board or any duly constituted committee thereof shall have made a Change of Recommendation; or (c) 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions set forth in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and satisfied, except if such breach or failure untruth is capable of being cured by the Termination Date, Parent shall not have the right to be true and correct is not curable terminate this Agreement pursuant to this Section 8.4(c) prior to the Outside Date, or if curable prior delivery by Parent to the Outside Date, has not been cured within the earlier of (i) thirty (30) days after the giving Company of written notice of such breach or failure by Parent to the Company specifying this Section 9.4(auntruth, delivered at least thirty (30) and describing such breach or failure in reasonable detail and (ii) three Business Days days prior to the Outside Date)such termination, whether before or after the Requisite Company Vote has been obtained; provided that the right stating Parent's intention to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a8.4(c) shall and the basis for such termination, it being understood that Parent will not be available entitled to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in terminate this Agreement and pursuant to this Section 8.4(c) if such breach shall have proximately caused or untruth has been cured prior to the failure earlier of (i) such thirtieth (30th) calendar day after such notice is given or (ii) one (1) business day prior to the Termination Date; provided, further, that Parent is not then in material breach of this Agreement so as to cause any of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior Article VII not to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change be capable of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2being satisfied.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval by the stockholders of the Company referred to in Section 6.1(a), by action of the Board of Directors of Parent: , if (a) if the Company Board (i) shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of this Agreement, the Option Agreement, the Support Agreement or the Merger or (ii) shall have recommended an Alternative Proposal to the Company stockholders, 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 of any representation or warranty of contained in this Agreement that (i) has had or is reasonably likely to have a Company Material Adverse Effect, or any breach by the Company shall have become untrue of any representation or incorrect following warranty contained in the date Option Agreement or (ii) would cause the condition set forth in Section 6.3(a)(ii) to not be satisfied, or any breach by any Shareholder of this any representation or warranty contained in the Support Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such which breach or failure to be true and correct is not curable prior to the Outside Dateor, or if curable prior to the Outside Datecurable, has is not been cured within the earlier of (i) thirty (30) 30 days after the giving of written notice of such breach or failure is given by Parent to the Company specifying this Section 9.4(aor the breaching Shareholder, as appropriate, or (c) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote there has been obtained; provided that a material breach of any of the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent covenants or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement agreements set forth in this Agreement and such breach shall have proximately caused or the failure Option Agreement on the part of the conditions Company, or any of the covenants or agreements set forth in the Support Agreement by any Shareholder, which breach would cause the condition set forth in Section 8.2(a6.3(a)(i) or Section 8.3(b); to not be satisfied, and, which breach is not curable or (b) at any time prior , if curable, is not cured within 30 days after written notice of such breach is given by Parent to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2the breaching Shareholder, as appropriate.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by Parent: (a) if the Board of Directors of the Company or any committee thereof shall have made a Change of Recommendation or shall have approved or recommended to the stockholders of the Company an Acquisition Proposal; (b) if 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions set forth in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct is not curable or, if curable, is not cured (in each case, to the extent necessary to satisfy the applicable condition set forth in Section 7.2(a) or 7.2(b)) prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) 30 calendar days after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) the date that is three Business Days prior to the Outside Termination Date; provided, however, that Parent is not then in breach of this Agreement so as to cause any of the conditions set forth in Sections 7.1, 7.3(a) or 7.3(b) not to be satisfied; or (c) if (i) all of the conditions set forth in Sections 7.1 and 7.3 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing), whether before or after (ii) the Requisite Company Vote has been obtained; provided that the right fails to terminate this Agreement and abandon consummate the transactions contemplated by this Agreement within two Business Days following the date the Closing should have occurred pursuant to this Section 9.4(a1.2 and (iii) shall not be available to Parent if either Parent or and Merger Sub has breached in any material respect any representationstood ready, warrantywilling and able to consummate on that date; provided, covenant or agreement set forth in that during such two Business Day period following the date the Closing should have occurred pursuant to Section 1.2, no party shall be entitled to terminate this Agreement and such breach shall have proximately caused the failure of the conditions set forth in pursuant to Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2.

Termination by Parent. Subject to the other provisions of this Article ‎Article IX, this Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by Parent: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a‎8.2(a) or Section 8.2(b‎8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a‎9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a‎9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the occurrence of the failure of a condition to the conditions set forth in Closing to occur or if the Company has the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to Section 8.2(a) or Section 8.3(b‎9.3(a); or (b) at any time prior to the time the Requisite Company Vote is obtained, if (i) if the Company Board or the Special Committee shall have effected a Change of Recommendation or and (ii) the Company or any shall have committed a Willful and Material Breach of its Representatives knowingly and intentionally breaches any the terms of its obligations under Section 7.2.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated by Parent, by action authorized by the board of directors of Parent, and the transactions contemplated by this Agreement Merger and the other Transactions may be abandoned at any time prior to the Effective Time by Parentif: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the time the Requisite Company Vote has been obtained, the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement or any of such representations and warranties shall have become inaccurate as of any date subsequent to the date of this Agreement, which breach, or failure to perform or inaccuracy (i) has resulted in the failure of a condition set forth in Section 7.2(a) or 7.2(b) (assuming in the case of any inaccuracy, that such subsequent date was the Closing Date) which remains in effect as of the time of such termination; provided and (ii) is not capable of being cured prior to the Outside Date or, if capable of being cured, shall not have been cured by the Company within 45 days after reasonably detailed written notice thereof is given by Parent to the Company; provided, however, that Parent shall not have the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a8.4(a) shall not be available to Parent if either Parent or Merger Sub has breached is then in material breach of any of its respective material respect any representation, warranty, covenant covenants or agreement agreements set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b)Agreement; or (b) at any time prior to the time obtaining the Requisite Company Vote is obtainedVote, (i) if the board of directors of the Company Board shall have effected makes a Change of Recommendation (whether or not in compliance with Section 6.2(d)); or (ii) the Company or shall have breached in any of its Representatives knowingly and intentionally breaches any of material respect its obligations under Section 7.26.2.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned by Parent: (a) at any time prior to when the Company Requisite Vote is obtained, if the Board of Directors of the Company (i) shall have made and not withdrawn a Change of Recommendation, (ii) shall have failed (or the Company shall have failed) to include the Company Recommendation in the Proxy Statement or (iii) shall have breached (or the Company shall have breached) in any material respect its obligations under Section 6.2 and, in the case of this clause (iii), such breach is not curable or, if curable, is not cured prior to the earlier of (x) the 5th Business Day after written notice thereof is given by Parent to the Company and (y) the date that is three Business Days prior to the Termination Date; or (b) at any time prior to the Effective Time by Parent: (a) Time, if 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions set forth in Section 8.2(aSections 7.2(a) or Section 8.2(b7.2(b) would not be satisfied (satisfied, and such breach or failure to be true and correct condition is not curable or, if curable, is not cured 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 the 30th day after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) the date that is three Business Days prior to the Outside Termination Date); provided, whether before or after the Requisite Company Vote has been obtained; provided however, that the right to terminate Parent is not then in material breach of this Agreement and abandon the transactions contemplated by this Agreement pursuant so as to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in cause any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a7.3(a) or Section 8.3(b); or (b7.3(b) at any time prior not to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change be capable of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2being satisfied.

Termination by Parent. Subject Parent shall have the right to terminate this Agreement: (i) if prior to Company Stockholder Approval the other provisions of this Article IXCompany makes a Company Adverse Recommendation Change; provided, however, that Parent shall not have the right to terminate this Agreement may be terminated and under this Section 8.01(d)(i) after the transactions contemplated by this Agreement may be abandoned Company Stockholder Approval is obtained; or (ii) at any time prior to the Effective Time by Parent: (a) Time, if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreementbreaches or fails to perform any of its covenants or agreements contained herein, or if any representation of the representations or warranty warranties of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure contained herein fails to be true and correct correct, which breach or failure (A) would give rise to the failure of a condition set forth in Section 7.03(a) or Section 7.03(b), as applicable, and (B) is not curable prior to reasonably capable of being cured by the Outside DateCompany by the End Date or, or if curable prior to capable of being cured, is not cured by the Outside Date, has not been cured Company within the earlier of (i) thirty (30) days after the giving of receiving written notice from Parent of such breach or failure by failure; provided, however, that Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that shall not have the right to terminate this Agreement under this Section 8.01(d)(ii) if Parent is then in breach of any covenant or agreement contained herein or any representation or warranty of Parent contained herein then fails to be true and abandon correct such that the transactions contemplated by conditions set forth in Section 7.02(a) or Section 7.02(b), as applicable, could not then be satisfied. The Party desiring to terminate this Agreement pursuant to this Section 9.4(a8.01 (other than pursuant to Section 8.01(a)) shall not be available give written notice of such termination to Parent if either Parent or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in the other Party specifying the provision of this Agreement and pursuant to which such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote termination is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2being effected.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to by the Effective Time by ParentParent Board: (a) if there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct 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 written notice of such breach or failure thereof by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and stating Parent’s intention to terminate this Agreement and (ii) three (3) Business Days prior to the Outside Date); provided, whether before or after the Requisite Company Vote has been obtained; provided however, that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub it has breached in any material respect any representation, warranty, covenant or agreement its obligations set forth in this Agreement and such breach in any manner that shall have proximately caused contributed to the occurrence of the failure of a condition to the conditions set forth in Section 8.2(a) or Section 8.3(b)consummation of the Merger; or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected have: (A) made and not withdrawn a Change of Recommendation or Recommendation; or (iiB) authorized the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned by Parent: (a) at any time prior to the time the Stockholder Approval is obtained, if the Company Board (or any committee thereof) shall have effected a Change of Recommendation or allowed the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement (for the avoidance of doubt, other than an Acceptable Confidentiality Agreement); provided that Parent’s right to terminate this Agreement pursuant to this Section 7.4(a) will expire at 5:00 p.m., New York City time, on the tenth (10th) Business Day following the date on which such right to terminate first arose; or (b) at any time prior to the Effective Time by Parent: (a) Time, if there has been a breach of any representation, warranty, covenant or agreement made by of the Company set forth in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.2(a) or if any representation or warranty 6.2(b), and (ii) (A) is not capable of being cured by the Company by the Termination Date or (B) if capable of being cured, shall not have become untrue or incorrect following the date of this Agreement, in either case such that the conditions in Section 8.2(a) or Section 8.2(b) would not be satisfied (and such breach or failure to be true and correct is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within before the earlier of (ix) thirty (30) days after the giving Business Days following receipt of written notice from Parent of such breach or failure by (y) the Termination Date; provided, that neither Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or nor Merger Sub has breached is then in any material respect breach of any representation, warranty, covenant or agreement set forth in of this Agreement and such breach shall have proximately caused that any condition to the failure obligations of the conditions Company set forth in Section 8.2(a6.3(a) or Section 8.3(b); or (b6.3(b) at any time prior to the time the Requisite Company Vote is obtained, (i) would not then be satisfied if the Company Board shall have effected a Change Closing Date were the date of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2such termination.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by Parentaction of the board of directors of Parent if: (a) if the board of directors of the Company shall have (i) made a Change of Recommendation, (ii) recommended to the stockholders of the Company the approval of an Acquisition Proposal other than the Merger or (iii) failed to include in the Proxy Statement distributed to stockholders its recommendation that stockholders approve the Merger pursuant to this Agreement or failed to call the Stockholders Meeting in breach of its obligations under this Agreement; (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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct is not curable or, if curable, is not cured 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 written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days two (2) business days prior to the Outside Termination Date); (c) if any condition set forth in Sections 7.1, whether before 7.2 or after the Requisite Company Vote 7.3 has not been obtained; provided that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall satisfied or cannot be available satisfied on or prior to Parent if either the date that is 5 business days prior to the Termination Date (excluding conditions that, by their terms, cannot be satisfied until the Closing) primarily as a result of compliance by the Company, Parent or Merger Sub has in all material respects with its obligations under Section 6.16; (d) if the Company shall have willfully or intentionally breached this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach is not curable or, if curable, is not cured prior to the earlier of (i) thirty (30) days after written notice thereof is given by Parent to the Company or (ii) two (2) business days prior to the Termination Date; or (e) if the Company shall have breached Section 6.16 in any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2constitutes an Inadvertent Breach.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned abandoned, whether before or after the approval by the stockholders of the Company referred to in Section 7.1(a), at any time prior to the Effective Time by Parentaction of the board of directors of Parent if: (a) if the board of directors of the Company or any committee thereof (i) shall have made a Change in Recommendation or has resolved or announced its intention to make a Change in Recommendation whether or not permitted by Section 6.2(e) or (ii) shall have approved or recommended to the stockholders of the Company an Acquisition Proposal other than the Merger or shall have resolved to the effect of the foregoing; (b) the Company (i) materially breaches its obligations under Sections 6.2, 6.4(b) or 6.5, or the board of directors of the Company shall resolve to do any of the foregoing or (ii) (A) materially breaches its obligations under Sections 6.4 or 6.6(a) and (B) such breach is not cured by the earlier of (x) five days after the Company’s receipt of written notice asserting such breach or failure from Parent or Merger Sub or (y) two business days prior to the Termination Date; or (c) there has been a breach of any representation, warranty, covenant or agreement made by the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue or incorrect following the date of this Agreement, in either case Agreement such that the conditions in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach or failure to be true and correct condition is not curable or, if curable, is not cured prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) 60 days after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three Business Days two business days prior to the Outside Termination Date); provided, whether before or after the Requisite Company Vote has been obtained; provided however, that the right to terminate this Agreement and abandon the transactions contemplated by this Agreement pursuant to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached is not then in any material respect any representation, warranty, covenant or agreement set forth in breach of this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a) or Section 8.3(b); or (b) at any time prior to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2Agreement.

Termination by Parent. Subject to the other provisions of this Article IX, this This Agreement may be terminated and the transactions contemplated by this Agreement Merger may be abandoned at any time prior to the Effective Time by Parent: written notice of Parent if (a) if the Company Board (i) shall have made a Change of Recommendation, (ii) fails to include in the Proxy Statement when mailed, the Company Recommendation or (iii) 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 affiliates), including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, within 10 Business Days after commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act); (b) the Company enters into an Alternative Acquisition Agreement; or (c) 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 or and warranty of the Company shall have become untrue or incorrect following after the date of this Agreement, in either case such that the conditions set forth in Section 8.2(a7.2(a) or Section 8.2(b7.2(b) would not be satisfied (and such breach cannot be or failure to be true and correct is not curable cured prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) calendar days after the giving of written notice of such breach or failure thereof is given by Parent to the Company specifying this Section 9.4(a) and describing such breach or failure in reasonable detail and (ii) three two (2) Business Days prior to the Outside Termination Date); provided, whether before or after the Requisite Company Vote has been obtained; provided however, that Parent shall not have the right to terminate this Agreement and abandon the transactions contemplated by pursuant to Section 8.4(c) if Parent is then in material breach of this Agreement pursuant so as to this Section 9.4(a) shall not be available to Parent if either Parent or Merger Sub has breached in cause any material respect any representation, warranty, covenant or agreement set forth in this Agreement and such breach shall have proximately caused the failure of the conditions set forth in Section 8.2(a7.1, 7.3(a) or Section 8.3(b); or (b7.3(b) at any time prior not to the time the Requisite Company Vote is obtained, (i) if the Company Board shall have effected a Change be capable of Recommendation or (ii) the Company or any of its Representatives knowingly and intentionally breaches any of its obligations under Section 7.2being satisfied.