Common use of Termination Fee; Expenses Clause in Contracts

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited to, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement and any fees required to be paid under the HSR Act. (b) Without limiting any other remedies available to Parent, in the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), (ii) Company shall terminate this Agreement pursuant to Section 9.01(e), or (iii) (A) a Company Competing Transaction shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Agreement is terminated by Parent or Company pursuant to Section 9.01(b) or Section 9.01(f), and (C) within twelve (12) months of the termination of this Agreement Company enters into such Company Competing Transaction (or a Company Competing Transaction that arises out of or relates to such Company Competing Transaction), then within two (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (2) Business Days after the consummation of the transaction in case of clause (iii), Company shall pay to Parent a fee in the amount of $1,750,000 (the “Company Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by Parent. (c) Without limiting any other remedies available to Company, in the event that Company terminates this Agreement pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k), then within two (2) Business Days after termination of this Agreement Parent shall pay Company a fee in the amount of $1,750,000 by wire transfer of immediately available funds to an account designated in writing by Company.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.0510.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited to, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement and any fees required to be paid under the HSR Actconsummated. (b) Without limiting any other remedies available to Parent, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d10.01(b) or (d) and at any time after the date of this Agreement there shall have been publicly announced a Competing Transaction with respect to Company and a binding agreement with respect to a Competing Transaction is entered into by Company on or before December 17, 2001, then Company shall pay to Parent an amount equal to $100,000 (the "COMPANY TERMINATION FEE"). Notwithstanding the foregoing, no fee shall be paid pursuant to this Section 10.05(b) if Parent shall be in material breach of its obligations hereunder. Any Company Termination Fee shall be paid in same day funds within three (ii3) Business Days of the date of termination or the execution of a binding agreement with respect to a Competing Transaction, as applicable. (c) In the event that Company shall terminate this Agreement pursuant to Section 9.01(e), 10.01(b) or (iiie) (A) a Company Competing Transaction and at any time after the date of this Agreement there shall have been publicly announcedannounced a Competing Transaction with respect to Parent and a binding agreement with respect to a Competing Transaction is entered into by Parent on or before December 17, commenced 2001, then Parent shall pay to Company an amount equal to $100,000 (the "PARENT TERMINATION FEE"). Notwithstanding the foregoing, no fee shall be paid pursuant to this Section 10.05(c) if Company shall be in material breach of its obligations hereunder. Any Parent Termination Fee shall be paid in same day funds within three (3) Business Days of the date of termination or otherwise become publicly known or any Person shall have publicly announced an intention the execution of a binding agreement with respect to make a Company Competing Transaction, (B) this Agreement is terminated by Parent or Company pursuant to Section 9.01(b) or Section 9.01(f), and (C) within twelve (12) months of the termination of this Agreement Company enters into such Company Competing Transaction (or a Company Competing Transaction that arises out of or relates to such Company Competing Transaction), then within two (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (2) Business Days after the consummation of the transaction in case of clause (iii), Company shall pay to Parent a fee in the amount of $1,750,000 (the “Company Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by Parentas applicable. (cd) Without limiting The parties agree that any other remedies available remedy or amount payable pursuant to Companythis Section 10.05 shall be an exclusive remedy, except for fraud, any willful breach of any representation, warranty, covenant or agreement contained in the event that Company terminates this Agreement pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k), then within two (2) Business Days after termination of this Agreement Parent shall pay Company a fee in the amount of $1,750,000 by wire transfer of immediately available funds to an account designated in writing by Companyor any action seeking specific performance.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited to, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement and any fees required to be paid under the HSR Act. (b) Without limiting any other remedies available to Parent, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), (ii) Company shall terminate this Agreement pursuant to Section 9.01(e), or (iii) (A) a Company Competing Transaction shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Agreement is validly terminated by either Parent or the Company pursuant to Section 9.01(b) or Section 9.01(f), and (C) within twelve (12) months of the termination of this Agreement Company enters into such Company Competing Transaction (or a Company Competing Transaction that arises out of or relates to such Company Competing Transaction6.1(d), then within two (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (2) Business Days after the consummation of the transaction in case of clause (iii), Company shall pay to Parent an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger, up to a fee in maximum of $450,000 (the “Expense Reimbursement”). Parent shall provide prompt notice to the Company of the amount of $1,750,000 (the “Company Termination Fee”Expense Reimbursement following such termination. The Expense Reimbursement payable pursuant to this Section 6.3(a) shall be paid, at the option of the Company, either by delivery of the Reimbursement Promissory Note or by wire transfer of immediately available funds to an account designated in writing by Parent, in each case no later than the second (2nd) Business Day following such termination; provided, however, that if the Company elects to pay the Expense Reimbursement in cash and Parent has not provided wire information to the Company for the Expense Reimbursement at least one (1) Business Day prior to the date such payment is due to Parent, then the Expense Reimbursement shall be paid one (1) Business Day after such wire instructions are provided to the Company. (cb) Without limiting any other remedies available to Company, in In the event that Company terminates this Agreement is validly terminated by Parent pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k6.1(e), then within two (2) Business Days after termination of this Agreement Parent the Company shall pay to Parent the Company a fee in the amount of $1,750,000 Termination Fee. The Company Termination Fee payable pursuant to this Section 6.3(b) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent no later than the second (2nd) Business Day following such termination; provided, however, that if Parent has not provided wire information to the Company for the Company Termination Fee at least one (1) Business Day prior to the date such payment is due to Parent, then the Company Termination Fee shall be paid one (1) Business Day after such wire instructions are provided to the Company. (c) Subject to Section 7.7 (Specific Performance) and notwithstanding any other provision of this Agreement to the contrary, each of Parent and Merger Sub acknowledges and agrees on behalf of itself and its Affiliates that its receipt of the Company Termination Fee pursuant to Section 6.3(b), together with the reimbursement of any applicable expenses and interest pursuant to Section 6.3(d), shall constitute the sole and exclusive remedy under this Agreement of Parent, Merger Sub and the Parent Related Parties against the Company or any Company Related Party, and the receipt of the Company Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub and the Parent Related Parties in connection with this Agreement (and the termination hereof), the Merger and the other transactions contemplated hereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub or any Parent Related Party shall be entitled to bring or maintain any Legal Proceeding against the Company or any Company Related Party arising out of or in connection with this Agreement, the Merger or any of the other transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination. (d) Each of the Company, Parent and Merger Sub acknowledges and agrees that: (i) the agreements contained in this Section 6.3 are an integral part of the transactions contemplated by this Agreement; (ii) the Company Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such termination fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision; and (iii) without these agreements, Parent would not have entered into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 6.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of any amount set forth in this Section 6.3, the Company shall pay Parent its costs and expenses in connection with such suit, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.

Termination Fee; Expenses. (a) Except as set forth If this Agreement is terminated by Parent or the Company pursuant to Section 8.1(d), a Parent Acquisition Proposal shall have been made public before the Parent Stockholders' Meeting, and within nine months of the Parent Stockholders' Meeting, Parent signs a definitive merger or similar agreement for a Parent Acquisition Transaction with any Person, then Parent shall pay to the Company, in cash, a nonrefundable fee in the amount of $11,000,000 within three business days of such signing. (b) If this Agreement is terminated by Parent or the Company pursuant to Section 9.058.1(e), all Expenses then Parent shall pay to the Company, in cash, a nonrefundable fee in the amount of $11,000,000. (c) If this Agreement is terminated by Parent pursuant to Section 8.1(g), then the Company shall pay Parent, in cash, a nonrefundable fee equal to 100% of Parent's out-of-pocket expenses incurred in connection with this Agreement and the Merger transactions contemplated hereby. If this Agreement is terminated by the Company pursuant to Section 8.1(h), then Parent shall pay the Company, in cash, a nonrefundable fee equal to 100% of the Company's out-of-pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby. (d) Any termination payment required under Section 8.3(b) or Section 8.3(c) shall be made within three business days after termination of this Agreement. (e) Neither Parent nor the Company shall be entitled or permitted to collect more than one termination fee under this Section 8.3. In the event of the payment of a termination fee under this Section 8.3, such payment shall be the payee's sole remedy against the payor in connection with the termination of this Agreement, except under circumstances of willful breach or fraud. (f) Except as otherwise provided by this Section 8.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such Expensesexpenses, whether or not the Merger is consummated (including but not limited to, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement and any fees required to be paid under the HSR Actconsummated. (b) Without limiting any other remedies available to Parent, in the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), (ii) Company shall terminate this Agreement pursuant to Section 9.01(e), or (iii) (A) a Company Competing Transaction shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Agreement is terminated by Parent or Company pursuant to Section 9.01(b) or Section 9.01(f), and (C) within twelve (12) months of the termination of this Agreement Company enters into such Company Competing Transaction (or a Company Competing Transaction that arises out of or relates to such Company Competing Transaction), then within two (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (2) Business Days after the consummation of the transaction in case of clause (iii), Company shall pay to Parent a fee in the amount of $1,750,000 (the “Company Termination Fee”) by wire transfer of immediately available funds to an account designated in writing by Parent. (c) Without limiting any other remedies available to Company, in the event that Company terminates this Agreement pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k), then within two (2) Business Days after termination of this Agreement Parent shall pay Company a fee in the amount of $1,750,000 by wire transfer of immediately available funds to an account designated in writing by Company.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited toconsummated, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that New Parent and Company each shall pay one one-half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement (for the avoidance of doubt, not including related attorneys’ and accountants’ fees and Expenses) and any fees required to be paid under the HSR ActAct and under any comparable statute applicable under Canadian law. (b) Without limiting any other remedies available to Parent, in In the event that that: (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), , (ii) this Agreement is terminated pursuant to Section 9.01(e) or Section 9.01(f) and (A) at or prior to the time of such termination, either a Company Competing Transaction shall have been proposed to Company or a definitive proposal for a Company Competing Transaction is publicly announced or (B) within 12 months after such termination, Company shall enter into a definitive agreement with respect to any Company Competing Transaction or any Company Competing Transaction involving Company shall be consummated, (iii) Company shall terminate this Agreement pursuant to Section 9.01(e9.01(h), or (iv) this Agreement is terminated pursuant to Section 9.01(b) under circumstances where the failure of the Effective Time to occur on or (iii) before the Termination Date was not caused by Parent’s failure to fulfill any of its obligations under this Agreement and (A) at or prior to the time of such termination, either a Company Competing Transaction shall have been publicly announced, commenced proposed to Company or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Agreement is terminated by Parent or Company pursuant to Section 9.01(b) or Section 9.01(f), and (C) within twelve (12) months of the termination of this Agreement Company enters into such Company Competing Transaction (or definitive proposal for a Company Competing Transaction that arises out of is publicly announced or relates (B) within 12 months after such termination, Company shall enter into a definitive agreement with respect to such any Company Competing Transaction)Transaction or any Company Competing Transaction involving Company shall be consummated; provided; however, then within two that in no event shall Parent be entitled to a Company Termination Fee (2as defined below) Business Days after termination of under this Agreement in Section 9.05(b)(iv) if the case of clause (i) and (ii) or within two (2) Business Days after the consummation initial filing of the transaction in case of clause (iii)preliminary Proxy Statement occurs after December 15, 2003. then Company shall pay to Parent a fee in the amount of $1,750,000 (the “Company Termination Fee”) by wire transfer of immediately available a sum equal to $3,750,000. Any Company Termination Fee shall be paid in same day funds within two Business Days after the date this Agreement is terminated (in a manner set forth in this Section 9.05(b)) or within two Business Days after the Company Termination Fee otherwise becomes due and payable pursuant to an account designated in writing by Parentthis Section 9.05(b). (c) Without limiting any other remedies available to Company, Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the event that Company terminates transaction contemplated by this Agreement pursuant and constitute liquidated damages and not a penalty and that without these Agreements, Parent would not enter into this Agreement or the Voting Agreements. Accordingly, if Company fails to pay to Parent any amounts due under Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k9.05(b), then within two (2) Business Days after termination of this Agreement Parent Company shall pay Company a fee the fees and expenses (including legal fees and expenses) in connection with any action, including the amount filing of $1,750,000 by wire transfer any lawsuit of immediately available funds other legal action, taken to an account designated collect payment, together with interest on such amounts at the prime rate of X.X. Xxxxxx Xxxxx & Co. in writing by Companyeffect on the date such payment was required to be made.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Restated Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited toconsummated, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one one-half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement (for the avoidance of doubt, not including related attorneys' and accountants' fees and Expenses) and any fees required to be paid under the HSR Act. (b) Without limiting any other remedies available to Parent, in the event that that (i) Parent shall terminate this Restated Agreement pursuant to Section 9.01(d), , (ii) Company shall terminate this Restated Agreement pursuant to Section 9.01(e), or or (iii) (A) a Company Competing Transaction shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Restated Agreement is terminated by Parent or Company pursuant to Section 9.01(b) or Section 9.01(f), and (CA) at or prior to the time of such termination, either there shall have been proposed or publicly announced a Company Competing Transaction or (B) within twelve (12) months of the termination of this Agreement after such termination, Company enters shall enter into such a definitive agreement with respect to any Company Competing Transaction (or a any Company Competing Transaction that arises out of or relates to such involving Company Competing Transaction)shall be consummated, then Company shall pay to Parent (the "COMPANY TERMINATION FEE") a sum equal to $1,000,000. Any Company Termination Fee shall be paid in same day funds within two three (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (23) Business Days after the consummation date this Restated Agreement is terminated or within three (3) Business Days after the Company Termination Fee otherwise becomes due and payable pursuant to this Section 9.05(b); provided that notwithstanding the foregoing, any Company Termination Fee pursuant to Section 9.05(b)(ii) shall be paid in same day funds immediately prior to the time on which this Restated Agreement is terminated pursuant thereto. (c) Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the transaction in case of clause (iiicontemplated by this Restated Agreement and constitute liquidated damages and not a penalty and that without these Agreements, Parent would not enter into this Restated Agreement or the Stockholder Agreements. Accordingly, if Company fails to pay to Parent any amounts due under Section 9.05(b), Company shall pay the fees and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit of other legal action, taken to Parent a fee collect payment, together with interest on such amounts at the prime rate of Citibank, N.A. in effect on the amount of $1,750,000 (the “Company Termination Fee”) by wire transfer of immediately available funds date such payment was required to an account designated in writing by Parentbe made. (c) Without limiting any other remedies available to Company, in the event that Company terminates this Agreement pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k), then within two (2) Business Days after termination of this Agreement Parent shall pay Company a fee in the amount of $1,750,000 by wire transfer of immediately available funds to an account designated in writing by Company.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited toconsummated, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one one-half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement (for the avoidance of doubt, not including related attorneys' and accountants' fees and Expenses) and any fees required to be paid under the HSR Act. (b) Without limiting any other remedies available to Parent, in the event that that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d) or Section 9.01(f), or (ii) Company shall terminate this Agreement pursuant to Section 9.01(e), or (iii) (A) a Company Competing Transaction shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Agreement is terminated by Parent or Company pursuant to Section 9.01(b) or Section 9.01(f9.01(e), and (CA) at or prior to the time of such termination, either there shall have been proposed or publicly announced a Company Competing Transaction or (B) within twelve (12) months of the termination of this Agreement after such termination, Company enters shall enter into such a definitive agreement with respect to any Company Competing Transaction (or a any Company Competing Transaction that arises out of or relates to such involving Company Competing Transaction)shall be consummated, then Company shall pay to Parent (the "COMPANY TERMINATION FEE") a sum equal to $1,654,000. Any Company Termination Fee shall be paid in same day funds within two three (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (23) Business Days after the consummation date this Agreement is terminated or within three (3) Business Days after the Company Termination Fee otherwise becomes due and payable pursuant to this Section 9.05(b). (c) Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the transaction in case of clause (iiicontemplated by this Agreement and constitute liquidated damages and not a penalty and that without these Agreements, Parent would not enter into this Agreement or the Stockholder Agreements. Accordingly, if Company fails to pay to Parent any amounts due under Section 9.05(b), Company shall pay the fees and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit of other legal action, taken to Parent a fee collect payment, together with interest on such amounts at the prime rate of Citibank, N.A. in effect on the amount of $1,750,000 (the “Company Termination Fee”) by wire transfer of immediately available funds date such payment was required to an account designated in writing by Parentbe made. (c) Without limiting any other remedies available to Company, in the event that Company terminates this Agreement pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k), then within two (2) Business Days after termination of this Agreement Parent shall pay Company a fee in the amount of $1,750,000 by wire transfer of immediately available funds to an account designated in writing by Company.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited to, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement and any fees required to be paid under the HSR Act. (b) Without limiting any other remedies available to Parent, in In the event that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d), (ii) Company shall terminate this Agreement pursuant to Section 9.01(e), or (iii) (A) a Company Competing Transaction shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Agreement is validly terminated by either Parent or the Company pursuant to Section 9.01(b) or Section 9.01(f), and (C) within twelve (12) months of the termination of this Agreement Company enters into such Company Competing Transaction (or a Company Competing Transaction that arises out of or relates to such Company Competing Transaction6.1(d), then within two (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (2) Business Days after the consummation of the transaction in case of clause (iii), Company shall pay to Parent an amount equal to the aggregate amount of all fees and expenses (including all attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been paid or that may become payable by or on behalf of Parent in connection with the preparation and negotiation of this Agreement and otherwise in connection with the Merger, up to a fee in maximum of $750,000 (the “Expense Reimbursement”). Parent shall provide prompt notice to the Company of the amount of $1,750,000 (the “Company Termination Fee”Expense Reimbursement following such termination. The Expense Reimbursement payable pursuant to this Section 6.3(a) shall be paid, at the option of the Company, either by delivery of the Reimbursement Promissory Note or by wire transfer of immediately available funds to an account designated in writing by Parent, in each case no later than the second (2nd) Business Day following such termination; provided, however, that if the Company elects to pay the Expense Reimbursement in cash and Parent has not provided wire information to the Company for the Expense Reimbursement at least one (1) Business Day prior to the date such payment is due to Parent, then the Expense Reimbursement shall be paid one (1) Business Day after such wire instructions are provided to the Company. (cb) Without limiting any other remedies available to Company, in In the event that Company terminates this Agreement is validly terminated by Parent pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k6.1(e), then within two (2) Business Days after termination of this Agreement Parent the Company shall pay to Parent the Company a fee in the amount of $1,750,000 Termination Fee. The Company Termination Fee payable pursuant to this Section 6.3(b) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent no later than the second (2nd) Business Day following such termination; provided, however, that if Parent has not provided wire information to the Company for the Company Termination Fee at least one (1) Business Day prior to the date such payment is due to Parent, then the Company Termination Fee shall be paid one (1) Business Day after such wire instructions are provided to the Company. (c) Subject to Section 7.7 (Specific Performance) and notwithstanding any other provision of this Agreement to the contrary, each of Parent and Merger Sub acknowledges and agrees on behalf of itself and its Affiliates that its receipt of the Company Termination Fee pursuant to Section 6.3(b), together with the reimbursement of any applicable expenses and interest pursuant to Section 6.3(d), shall constitute the sole and exclusive remedy under this Agreement of Parent, Merger Sub and the Parent Related Parties against the Company or any Company Related Party, and the receipt of the Company Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub and the Parent Related Parties in connection with this Agreement (and the termination hereof), the Merger and the other transactions contemplated hereby (and the abandonment or termination thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub or any Parent Related Party shall be entitled to bring or maintain any Legal Proceeding against the Company or any Company Related Party arising out of or in connection with this Agreement, the Merger or any of the other transactions contemplated hereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination. (d) Each of the Company, Parent and Merger Sub acknowledges and agrees that: (i) the agreements contained in this Section 6.3 are an integral part of the transactions contemplated by this Agreement; (ii) the Company Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such termination fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision; and (iii) without these agreements, Parent would not have entered into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 6.3 and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the payment of any amount set forth in this Section 6.3, the Company shall pay Parent its costs and expenses in connection with such suit, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law.

Termination Fee; Expenses. (a) Except as set forth in this Section 9.05, all Expenses incurred in connection with this Agreement and the Merger shall be paid by the party incurring such Expenses, whether or not the Merger is consummated (including but not limited toconsummated, commission or fees of any broker or finder, or any attorneys, accountants or other expert fees) except that Parent and Company each shall pay one one-half of all Expenses incurred solely for printing, filing and mailing the Registration Statement and the Joint Proxy Statement and all SEC and other regulatory filing fees incurred in connection with the Registration Statement and the Joint Proxy Statement (for the avoidance of doubt, not including related attorneys' and accountants' fees and Expenses) and any fees required to be paid under the HSR Act. (b) Without limiting any other remedies available to Parent, in the event that that (i) Parent shall terminate this Agreement pursuant to Section 9.01(d) or Section 9.01(f), or (ii) Company shall terminate this Agreement pursuant to Section 9.01(e), or (iii) (A) a Company Competing Transaction shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention to make a Company Competing Transaction, (B) this Agreement is terminated by Parent or Company pursuant to Section 9.01(b) or Section 9.01(f9.01(e), and (CA) at or prior to the time of such termination, either there shall have been proposed or publicly announced a Company Competing Transaction or (B) within twelve (12) months of the termination of this Agreement after such termination, Company enters shall enter into such a definitive agreement with respect to any Company Competing Transaction (or a any Company Competing Transaction that arises out of or relates to such involving Company Competing Transaction)shall be consummated, then Company shall pay to Parent (the "Company Termination Fee") a sum equal to $1,654,000. Any Company Termination Fee shall be paid in same day funds within two three (2) Business Days after termination of this Agreement in the case of clause (i) and (ii) or within two (23) Business Days after the consummation date this Agreement is terminated or within three (3) Business Days after the Company Termination Fee otherwise becomes due and payable pursuant to this Section 9.05(b). (c) Parent and Company agree that the agreements contained in Section 9.05(b) above are an integral part of the transaction in case of clause (iiicontemplated by this Agreement and constitute liquidated damages and not a penalty and that without these Agreements, Parent would not enter into this Agreement or the Stockholder Agreements. Accordingly, if Company fails to pay to Parent any amounts due under Section 9.05(b), Company shall pay the fees and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit of other legal action, taken to Parent a fee collect payment, together with interest on such amounts at the prime rate of Citibank, N.A. in effect on the amount of $1,750,000 (the “Company Termination Fee”) by wire transfer of immediately available funds date such payment was required to an account designated in writing by Parentbe made. (c) Without limiting any other remedies available to Company, in the event that Company terminates this Agreement pursuant to Section 9.01(i) and the Terminating Parent Breach is a violation of 6.02(k), then within two (2) Business Days after termination of this Agreement Parent shall pay Company a fee in the amount of $1,750,000 by wire transfer of immediately available funds to an account designated in writing by Company.