Common use of Termination Fees; Expenses Clause in Contracts

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i). (b) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) 10.01(c)(i), or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii10.01(d)(ii), then, in each case, then the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent a fee in the amount of $65,000,000 3,661,461 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii10.01(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i10.01(c)(i). (b) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii10.01(b)(i), and in each case (I) at any time after the date of this Agreement and prior to such termination (i) the final Expiration Date, a Company Acquisition Proposal has shall have been made to the Company and publicly announced or publicly made known and has shall not have been withdrawn prior to the termination final Expiration Date of this Agreement the Offer and (iiII) within twelve months after such termination, the Company (A) enters shall have entered into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a any Company Acquisition Proposal, thenor any Company Acquisition Proposal shall have been consummated, in any such event, then the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent the Company Termination Fee concurrently on the earlier to occur of the Company entering into an agreement with respect to such Company Acquisition Proposal or the consummation of the transaction arising from a such Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b10.03(b), references to “1520%” shall be replaced by “50%.”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 10.03 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly; accordingly, if either the Company fails promptly to timely pay any amount due pursuant to this Section 10.310.03, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.310.03, then the Company non-prevailing Party that is required to pay any such fee or expenses shall pay Parent the prevailing Party entitled to receive such fee or expenses its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 10.03 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law)made. All payments under this Section 10.3 10.03 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other Each Party agrees that notwithstanding anything in this Agreement to the contrary (other than with respect to claims for, or arising out of or in the case of Willful Breach by the Company, subject to Section 11.12, connection with fraud) (A) in the event that this Agreement is terminated under circumstances where the Company Termination Fee is would be payable pursuant to this Section 10.310.03, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent Parent, its Subsidiaries, stockholders, Affiliates, officers, directors, employees and Purchaser Representatives against the Company and its Subsidiaries and or any of their respective formerits Representatives or Affiliates for, current (B) in no event will Parent seek to recover any other money damages or future stockholdersseek any other remedy (including any remedy for specific performance, directorsexcept solely in compliance with Section 11.12 hereof) based on a claim in law or equity with respect to, officers(1) any loss suffered, Employeesdirectly or indirectly, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by Offer or the Merger to be consummated, (2) the termination of this Agreement, (3) any liabilities or obligations arising under this Agreement or (4) any claims or actions arising out of or relating to be consummated or for a breach any breach, termination or failure to perform hereunder of or otherwiseunder this Agreement, and (C) upon payment of such amountany Company Termination Fee in accordance with this Section 10.03, none no Party nor any Affiliates or Representatives of the Company Related Parties any Party shall have any further liability or obligation to another Party relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In the event that: (i) (A) a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal after the date of this Agreement, (B) this Agreement is subsequently terminated (x) by either party pursuant to Section 8.1(b)(i) (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or the Acquiring Parties have the right to terminate pursuant to Section 8.1(d)(i) (Company Breach)), (y) by either party pursuant to Section 8.1(b)(iii) (Company Stockholder Approval) or (z) by the Acquiring Parties pursuant to Section 8.1(d)(i) (Company Breach) or Section 8.1(d)(iii) (Breach of Non-Solicitation Covenants) and at the time of such termination in the case of clauses (x) and (y) (or at the time of such breach in the cause of clause (z)) a Competing Proposal has been publicly announced (or privately made to the Company in the case of clauses (x) and (z)) after the date of this Agreement and has not been withdrawn, and (C) within twelve (12) months of such termination of this Agreement, the Company consummates a transaction involving any Competing Proposal or enters into an Alternative Acquisition Agreement regarding any Competing Proposal and any Competing Proposal is subsequently consummated; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”; (ii) this Agreement is terminated by Parent the Acquiring Parties pursuant to Section 10.1(c)(i8.1(d)(ii) (Adverse Recommendation Change); (iii) (A) the Company Board shall have made an Adverse Recommendation Change and (B) this Agreement is terminated (1) by either party pursuant to Section 8.1(b)(i) (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or the Acquiring Parties have the right to terminate pursuant to Section 8.1(d)(i) (Company Breach) or in Section 8.1(b)(iii) (Company Stockholder Approval)), or (2) by the event that Acquiring Parties pursuant to Section 8.1(d)(i) (Company Breach); (iv) this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii8.1(c)(ii) (Superior Proposal); (v) this Agreement is terminated by the Acquiring Parties pursuant to Section 8.1(d)(iii) (Breach of Non-Solicitation Covenants); or (vi) this Agreement is terminated by the Company or the Acquiring Parties (A) pursuant to Section 8.1(b)(i) if, thenas of the time of such termination, in each case(1) the only conditions to Closing that have not been satisfied or waived (to the extent such waiver is not prohibited by applicable Law and other than those conditions that by their terms are to be satisfied at the Closing; provided, that such conditions were then capable of being satisfied if the Closing had taken place) are any one or more of the Regulatory Conditions and (2) no breach by the Company of its obligations under Section 6.3 has been a principal cause of the failure of any one or more of the Regulatory Conditions to be satisfied or (B) pursuant to Section 8.1(b)(ii) if (1) the relevant Law or Order or other action taken relates to Antitrust Laws or Investment Screening Laws and (2) no breach by the Company of its obligations under Section 6.3 has been a principal cause of the imposition of such Law or Order or the taking of any such other action; (1) the Company shall pay pay, or cause to Parentbe paid, by wire transfer of immediately available funds, a fee in to or at the amount direction of $65,000,000 the Acquiring Parties, (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such terminationx) in the case of a termination clauses (i), (ii), (iii) and (iv) above, one hundred percent (100%) of the Termination Fee (reduced by the portion of the Termination Fee previously paid pursuant to Section 10.1(c)(ithe immediately succeeding clause (y). , if any) and (by) In in the case of clause (v) above, an amount equal to the Acquiring Parties’ Expenses (provided that such amount shall not exceed $15 million) (it being understood that in no event that this Agreement is terminated by shall the Company be required to pay more than one hundred percent (100%) of the Termination Fee), (A) in the case of clause (i) above, on the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clauses (ii) or Parent pursuant to Section 10.1(b)(i(v), or if the Acquiring Parties are the terminating party in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(iicase of clause (iii), and in each case at any time no later than two (2) Business Days after the date of this Agreement such termination and (C) in the case of clause (iv), or if the Company is the terminating party in the case of clause (iii), prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after or substantially concurrently with such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B2) consummates a Company Acquisition Proposalthe Acquiring Parties shall pay, then, in any such event, the Company shall pay or cause to Parentbe paid, by wire transfer of immediately available funds, to or at the Company direction of the Company, in the case of clause (vi) above, one hundred percent (100%) of the Reverse Termination Fee Fee, no later than two (2) Business Days after the date of such termination or, if the Acquiring Parties are the terminating party, prior to or substantially concurrently with such termination (it being understood that in no event shall the consummation Acquiring Parties be required to pay more than one hundred percent (100%) of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of Reverse Termination Fee). Notwithstanding anything to the definition of “Company Acquisition Proposal” contrary in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) to the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating extent this Agreement and is terminated in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby and (iii) that, without these agreementsaccordance with Section 8.1, the Acquiring Parties would not enter into this Agreement. Accordinglyshall pay, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required or cause to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made paid, by wire transfer of immediately available funds funds, to an account designated in writing or at the direction of the Company no later than five (5) Business Days after the date of such termination, any amounts owed pursuant to Section 6.10(e) that have not already been advanced or reimbursed by Parent. In no event shall a Company Termination Fee be payable more than oncethe Acquiring Parties at the time of such termination. (db) Other than Notwithstanding anything to the contrary set forth in the case of Willful Breach by the Companythis Agreement, but subject to Section 11.129.9, the Acquiring Parties’ receipt in full of (i) the Termination Fee pursuant to Section 8.3 and (ii) Magna Termination Fee Refund pursuant to Section 8.7, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable owed pursuant to this Section 10.38.3, the payment of the Company Termination Fee shall be constitute the sole and exclusive monetary remedy of Parent the Acquiring Parties and Purchaser Merger Sub against the Company and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, Employeesemployees, agents, Affiliates or Representatives assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amountamounts, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to Section 8.3(c), Section 8.6 and Section 8.7, as applicable). (c) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 and Section 8.7 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Acquiring Parties in the circumstances in which such 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, the parties hereto would not enter into this Agreement. The parties further acknowledge that the Magna Termination Fee Refund shall not constitute a penalty, but is a refund of amounts previously paid by the Acquiring Parties on behalf of the Company. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 8.3 or Section 8.7 and, in order to obtain such payment, the Acquiring Parties commence a suit that results in a judgment against the Company for the payment of any amount set forth in this Section 8.3 or Section 8.7, the Company shall pay the Acquiring Parties their costs and expenses in connection with such suit, together with interest on such amount at the annual rate of two percent (2%) plus 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 Fees; Expenses. (a) In Except as otherwise provided in this Section 7.3 and except for (i) the event expenses in connection with printing and mailing the Joint Proxy Statement and the Form S-4 required in connection with the actions specified in Section 5.3, (ii) all SEC filing fees relating to the Transactions and (iii) the fees in connection with the approvals required under Section 6.1(e) related to the Transactions (each of which fees and expenses shall be borne, in each case, equally by Ouster and Velodyne), all fees and expenses incurred by the parties shall be borne solely by the party that has incurred such fees and expenses, whether or not the First Merger is consummated, and all such fees and expenses shall be paid by the applicable responsible party concurrently with the Closing. (b) Ouster shall pay to Velodyne $7,000,000 (the “Ouster Termination Fee”) if this Agreement is terminated as follows: (i) if this Agreement is terminated by Parent Velodyne pursuant to Section 10.1(c)(i7.1(c)(ii), then Ouster shall pay the Ouster Termination Fee (to the extent not previously paid) on the second (2nd) Business Day following such termination; (ii) (x) if this Agreement is terminated (A) pursuant to Section 7.1(b)(iii) or (B) pursuant to Section 7.1(c)(i) or (C) pursuant to Section 7.1(b)(ii) without the Ouster Stockholders Meeting having occurred, and (y) in any such case a Competing Proposal shall have been publicly announced or otherwise communicated to the Ouster Board (and not withdrawn) after the date of this Agreement and prior to the date of the Ouster Stockholders Meeting, in the event case of clause (A), or the date of termination, in the case of clauses (B) and (C), and (z) if within twelve (12) months after the date of such termination, a transaction in respect of a Competing Proposal is consummated or Ouster enters into a definitive agreement in respect of a Competing Proposal, then Ouster shall pay the Ouster Termination Fee) on the second (2nd) Business Day following the date Ouster consummates such transaction; provided that, solely for purposes of this Section 7.3(b)(ii), the term “Competing Proposal” shall have the meaning ascribed thereto in Section 5.4(f)(i), except that all references to 20% shall be changed to 50%; and (iii) if this Agreement is terminated by the Company Ouster pursuant to Section 10.1(d)(ii7.1(d)(iii), then, in each case, the Company then Ouster shall pay the Ouster Termination Fee substantially concurrently with such termination and no later than the second (2nd) Business Day following the date of entry into such definitive agreement pursuant to Parent, Section 7.1(d)(iii). Any Ouster Termination Fee due under this Section 7.3(b) shall be paid by wire transfer of immediately available funds, a fee in the amount of . (c) Velodyne shall pay to Ouster $65,000,000 7,000,000 (the “Company Velodyne Termination Fee”) at or prior to the termination of if this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or is terminated as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i).follows: (bi) In the event that if this Agreement is terminated by the Company or Parent Ouster pursuant to Section 10.1(b)(i7.1(d)(ii), or in then Velodyne shall pay the event that Velodyne Termination Fee (to the extent not previously paid) on the second (2nd) Business Day following such termination; (ii) (x) if this Agreement is terminated by Parent (A) pursuant to Section 10.1(c)(ii)7.1(b)(iv) or (B) pursuant to Section 7.1(d)(i) or (C) pursuant to Section 7.1(b)(ii) without the Velodyne Stockholders Meeting having occurred, and (y) in each any such case at any time a Competing Proposal shall have been publicly announced or otherwise communicated to the Velodyne Board (and not withdrawn) after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination date of this Agreement the Velodyne Stockholders Meeting, in the case of clause (A), or the date of termination, in the case of clauses (B) or (C), and (iiz) if within twelve (12) months after the date of such termination, the Company (A) a transaction in respect of a Competing Proposal is consummated or Xxxxxxxx enters into an a definitive agreement with in respect to of a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Competing Proposal, thenthen Velodyne shall pay the Velodyne Termination Fee) on the second Business Day following the date Velodyne consummates such transaction; provided that, in any such eventsolely for purposes of this Section 7.3(c)(ii), the Company term “Competing Proposal” shall have the meaning ascribed thereto in Section 5.4(f)(i), except that all references to 20% shall be changed to 50%; and (iii) if this Agreement is terminated by Velodyne pursuant to Section 7.1(c)(iii); then Velodyne shall pay the Velodyne Termination Fee substantially concurrently with such termination and no later than the second (2nd) Business Day following the date of entry into such definitive agreement pursuant to Parent, Section 7.1(c)(iii). Any Velodyne Termination Fee due under this Section 7.3(c) shall be paid by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (cd) The Parties acknowledge parties each agree that (i) the agreements contained in this Section 10.3 7.3 are an integral part of the transactions contemplated by this AgreementTransactions, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties parties would not enter into this Agreement. Accordingly, if the Company a party fails to timely pay any amount amounts due pursuant to under this Section 10.3, 7.3 and, in order to obtain such payment, Parent Velodyne or Ouster, as the case may be, commences a suit that results in a judgment against the Company such party for any amount due pursuant to this Section 10.3such amounts, then the Company such party shall pay Parent its reasonable and documented out-of-pocket interest on such amounts from the date payment of such amounts were due to the date of actual payment at the rate equal to the prime rate published in the Wall Street Journal for the relevant period, together with the costs and expenses of the other party (including reasonable attorneys’ legal fees and expenses) in connection with such suit. Notwithstanding anything to the contrary in this Agreement, together in the event that the Ouster Termination Fee or the Velodyne Termination Fee is payable and actually paid to Ouster or Velodyne in accordance with interest on this Section 7.3, payment of such Ouster Termination Fee or Velodyne Termination Fee, as applicable, shall be the amount due pursuant sole and exclusive remedy of the non-terminating party and its affiliates against any other party or such other party’s stockholders, directors, officers, affiliates and other Representatives, for any loss or damage based upon, arising out of or relating to this Section 10.3 from Agreement or the date such payment was required to be made until negotiation, execution or performance hereof or the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than Transactions contemplated hereby, except in the case of Willful Breach by or fraud. Solely for purposes of establishing the Companybasis for the amount thereof, subject and without in any way increasing the amount of the Ouster Termination Fee or the Velodyne Termination Fee, expanding the circumstances in which the Ouster Termination Fee or the Velodyne Termination Fee, as applicable, is to Section 11.12be paid or restricting or modifying the other rights of any party hereunder, in the event that of the valid termination of this Agreement is terminated under circumstances where in which the Company Ouster Termination Fee or the Velodyne Termination Fee is payable pursuant to this Section 10.37.3, it is agreed that each of the Ouster Termination Fee and the Velodyne Termination Fee is liquidated damages, and not a penalty, and the payment thereof in such circumstances is supported by due and sufficient consideration; provided that no payment of the Company an Ouster Termination Fee or a Velodyne Termination Fee shall be considered in lieu of, or a replacement or substitution for, damages incurred in the sole and exclusive remedy event of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current Willful Breach or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated herebyfraud.

Termination Fees; Expenses. (a) In the event that of termination of this Agreement is terminated by Parent pursuant to Section 10.1(c)(i8.1(e) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii(Partnership Adverse Recommendation Change), thenthen the Partnership shall promptly, but in each caseno event later than five Business Days after the date of such termination, pay Parent’s designee an amount in cash equal to $10,000,000 (the Company shall pay to Parent, “Partnership Termination Fee”) by wire transfer of immediately available funds, a fee funds to one or more accounts designated by Parent in the amount of $65,000,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i)writing. (b) In the event that of termination of this Agreement is terminated by the Company or Parent Partnership pursuant to Section 10.1(b)(i8.1(f) (Parent Adverse Recommendation Change), or then Parent shall promptly, but in the no event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time later than five Business Days after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, pay the Company Partnership’s designee an amount in cash equal to $20,000,000 (Athe “Parent Termination Fee”) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, funds to one or more accounts designated by the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition ProposalPartnership in writing; provided, howeverthat the Parent Termination Fee shall not exceed the maximum amount, if any, that the Partnership reasonably determines can be paid to the Partnership without causing the Partnership to fail the gross income requirement in Section 7704(c)(2) of the Code, treating the Parent Termination Fee as non-qualifying income and after taking into consideration all other sources of non-qualifying income of the Partnership, unless the Partnership receives an opinion of counsel or a ruling from the Internal Revenue Service to the effect that the Partnership’s receipt of the Parent Termination Fee will either constitute qualifying income (as defined in Section 7704(d) of the Code) or be excluded from gross income for purposes of Section 7704 of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”Code. (c) The Parties acknowledge that In the event of termination of this Agreement by Parent pursuant to Section 8.1(c), then the Partnership shall promptly, but in no event later than five Business Days after receipt of an invoice (iwith supporting documentation) therefor from Parent, pay Parent’s designee all of the agreements contained reasonably documented out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants) incurred by Parent and its Affiliates in connection with this Section 10.3 are an integral part of Agreement and the transactions contemplated by this Agreement, Agreement up to a maximum amount of $5,000,000 (the “Parent Expense Reimbursement”). (d) In the event of termination of this Agreement (i) by Parent or the Partnership pursuant to Section 8.1(b)(iv) or (ii) by the Company Partnership pursuant to Section 8.1(d), then Parent shall promptly, but in no event later than five Business Days after receipt of an invoice (with supporting documentation) therefor from the Partnership, pay the Partnership’s designee all of the reasonably documented out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants) incurred by the Partnership and its Affiliates in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $5,000,000 (the “Partnership Expense Reimbursement”); provided, that the Partnership Expense Reimbursement shall not exceed the maximum amount, if any, that the Partnership reasonably determines can be paid to the Partnership without causing the Partnership to fail the gross income requirement in Section 7704(c)(2) of the Code, treating the Partnership Expense Reimbursement as non-qualifying income and after taking into consideration all other sources of non-qualifying income of the Partnership, unless the Partnership receives an opinion of counsel or a ruling from the Internal Revenue Service to the effect that the Partnership’s receipt of the Partnership Expense Reimbursement will either constitute qualifying income (as defined in Section 7704(d) of the Code) or be excluded from gross income for purposes of Section 7704 of the Code. (e) Each of the parties hereto acknowledges that the Partnership Termination Fee is Fee, Parent Termination Fee, Parent Expense Reimbursement and Partnership Expense Reimbursement are not intended to be a penalty, but rather is are in a reasonable amount that will compensate Parent the other party, as applicable, in the circumstances in which such fee is amounts are due and payable and which do not involve fraud or Willful Breach, for the efforts and resources expended and opportunities foregone forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby and (iii) that, without these agreements, the Parties would not enter into by this Agreement. Accordingly, if the Company fails which amount would otherwise be impossible to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection calculate with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parentprecision. In no event shall a Company Termination Fee party be payable entitled to more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the one payment of the Company Partnership Termination Fee shall be the sole Fee, Parent Termination Fee, Parent Expense Reimbursement and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective formerPartnership Expense Reimbursement, current or future stockholdersas applicable, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as in connection with a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out termination of this Agreement or the transactions contemplated herebypursuant to which such amounts are payable.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent Buyer pursuant to Section 10.1(c)(i) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii11.1(e), thenSeller shall, in each caseno later than two (2) business days following the date of termination, the Company shall pay pay, or cause to Parentbe paid, by wire transfer of immediately available funds, at the direction of Buyer, the Termination Fee (it being understood that in no event shall a fee Termination Fee be required to be paid on more than one occasion, and in the amount of $65,000,000 (the “Company no event shall Parent or Seller be required to pay, collectively, more than one Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i). (b) In the event that this Agreement is terminated by the Company Parent/Seller Action or Parent by Buyer pursuant to (i) Section 10.1(b)(i11.1(b)(i) if all of the conditions in Section 10.1 and Section 10.2 have been satisfied or waived by Buyer (other than (1) the condition in Section 10.1(b) (if the Court Order causing such condition not to be satisfied is with respect to any Required Regulatory Law), Section 10.1(c), Section 10.1(d) or Section 10.1(e) or (2) those conditions that by their terms are to be satisfied at the Closing (which conditions described in this clause (2) would reasonably be expected to be satisfied if the event that Closing were held on the date of such termination)) or (ii) Section 11.1(b)(ii) as a result of a Governmental Body challenging the transactions contemplated by this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii)under any Required Regulatory Laws, and in each case at any time then Buyer shall, no later than two (2) business days after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect pay, or cause to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parentbe paid, by wire transfer of immediately available funds, at the Company direction of Seller, the Reverse Termination Fee concurrently with (it being understood that in no event shall Buyer be required to pay the consummation of the transaction arising from a Company Acquisition ProposalReverse Termination Fee on more than one occasion); provided, however, that for purposes of if the definition of “Company Acquisition Proposal” conditions in this Section 10.3(b10.1(c), references to “15%” Section 10.1(d) and Section 10.1(e) have been satisfied and Buyer has waived the condition in Section 10.1(b), no Reverse Termination Fee shall be replaced by “50%”payable pursuant to clause (i) of this sentence. For the avoidance of doubt, no Reverse Termination Fee shall be payable pursuant to this Agreement following the Closing. (c) The Parties acknowledge that (i) Notwithstanding anything to the agreements contained contrary set forth in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, but subject to and without limiting Parent and Seller’s rights set forth in Section 11.2, Section 11.3(e), Section 11.3(f) and Section 13.15, Seller’s (iior Seller’s designee’s) receipt in full of the Company Reverse Termination Fee pursuant to Section 11.3(b), in circumstances where the Reverse Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due owed pursuant to this Section 10.311.3(b), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be constitute the sole and exclusive remedy of Parent and Purchaser Seller against the Company and its Subsidiaries and Buyer or any of their respective its direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, Employeesemployees, agents, Affiliates or Representatives assignees of any of the foregoing (collectively, the “Company Buyer Related Parties”) for all losses Losses and damages suffered by any Seller Related Party as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Buyer Related Parties shall have any further liability Liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that Buyer shall also remain obligated with respect to Parent and Seller’s rights set forth in Section 11.2, Section 11.3(e), Section 11.3(f) and Section 13.15); provided, however, that notwithstanding the foregoing or anything in this Agreement to the contrary, nothing in this Agreement shall limit the liability of Buyer or the recovery of Parent or Seller in the event of any Intentional Breach or Fraud. (d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to and without limiting Buyer’s (or Buyer’s designee’s) rights set forth in Section 11.2, Section 11.3(e), Section 11.3(f) and Section 13.15, Xxxxx’s receipt in full of the Termination Fee pursuant to Section 11.3(a), in circumstances where the Termination Fee is owed pursuant to Section 11.3(a), shall constitute the sole and exclusive monetary remedy of Buyer against Parent, Seller, their Subsidiaries, the Designated Entities and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Seller Related Parties”) for all Losses and damages suffered by any Buyer Related Party as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Seller Related Parties shall have any further Liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that Parent and Seller shall remain obligated with respect to Buyer’s rights set forth in Section 11.2, Section 11.3(e), Section 11.3(f) and Section 13.15); provided, however, that notwithstanding the foregoing or anything in this Agreement to the contrary, nothing in this Agreement shall limit the liability of Seller or Parent or the recovery of Buyer in the event of any Intentional Breach or Fraud. (e) Notwithstanding Section 11.3(c) and Section 11.3(d) or anything else in this Agreement to the contrary, (i) payment of the Reverse Termination Fee pursuant to Section 11.3(b) shall not constitute (A) liquidated damages with respect to any claim for damages or any other claim which Parent or Seller would be entitled to assert against Buyer, any Buyer Related Parties or any of their respective assets with respect to any Intentional Breach of this Agreement or Fraud by Buyer prior to such termination, or (B) the sole and exclusive remedy with respect to any Intentional Breach of this Agreement or Fraud by Buyer prior to such termination and (ii) payment of the Termination Fee pursuant to Section 11.3(a) shall not constitute (A) liquidated damages with respect to any claim for damages or any other claim which Buyer would be entitled to assert against Parent, Seller, any Seller Related Parties or any of their respective assets with respect to any Intentional Breach of this Agreement or Fraud by Parent or Seller prior to such termination, or (B) the sole and exclusive remedy with respect to any Intentional Breach of this Agreement or Fraud by Parent or Seller prior to such termination. (f) Each of the Parties acknowledges that (i) the agreements contained in this Section 11.3 are an integral part of the transactions contemplated by this Agreement and without these agreements, Parent, Buyer, and Seller would not enter into this Agreement, (ii) each of the Termination Fee and the Reverse Termination Fee is not a penalty, but, except as set forth in Section 11.3(e), is liquidated damages, in a reasonable amount that will compensate Buyer or Parent and Seller, as the case may be, in the circumstances in which such 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, and (iii) without these agreements, the Parties would not enter into this Agreement. Accordingly, if Seller or Buyer, as the case may be, fails to timely pay any amount due pursuant to this Section 11.3 and, in order to obtain such payment, Parent, Seller or Buyer, as the case may be, commences a suit that results in a judgment against the other Party for the payment of any amount set forth in this Section 11.3 or any portion thereof, such paying Party shall pay the other Party its costs and expenses in connection with such suit (it being understood and agreed that neither Seller nor Buyer shall be required to reimburse any other Party, as applicable, for any premium, success fee, contingent fee or other similar fee, commission or payment incurred by such other Party in connection with the collection of such overdue amount or the enforcement by such other Party of its rights under this Section 11.3), together with interest on such amount at the annual rate of two percent (2%) plus 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. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that nothing in this Section 11.3 shall be deemed to affect their respective rights under Section 13.15 in order to specifically enforce (or receive injunctive relief relating to) this Agreement.

Termination Fees; Expenses. (a) In If this Agreement is terminated by Company pursuant to Section 7.1(h), then Company shall pay to Parent the event that Company Termination Fee and Parent's Expenses, by wire transfer to the account designated by Parent in immediately available funds, upon termination of this Agreement and as a condition to the effectiveness of such termination. (b) If this Agreement is terminated by Company pursuant to Section 7.1(d) and prior to the receipt by Company of the Company Stockholder Approval, any person (other than Parent or any of its affiliates) shall have made a Takeover Proposal, which shall have been publicly announced or publicly disclosed or otherwise publicly communicated to the Board of Directors of Company, then Company shall pay to Parent the Parent Expenses, by wire transfer to the account designated by Parent in immediately available funds, and, if within twenty-four months after such termination of this Agreement, Company shall have consummated, or shall have entered into an agreement to consummate (which may be consummated after such 24-month period), a Takeover Proposal, then Company shall pay to Parent an amount equal to the Company Termination Fee, by wire transfer to the account designated by Parent in immediately available funds, on the earlier of the public announcement of Company's entry into such agreement or the consummation of any such Takeover Proposal. (c) If this Agreement is terminated (i) by Parent pursuant to Section 7.1(g), (ii) by Company pursuant to Section 7.1(b) and, at the time of such termination, (A) the Company Stockholder Approval shall not have been obtained and (B) Parent would have been permitted to terminate this Agreement pursuant to Section 7.1(g), or (iii) by Parent (1) pursuant to Section 7.1(f) due to a breach of Company's covenants contained in this Agreement or the Parent Loan Agreement and, at the time of such breach, a Takeover Proposal shall have been announced or disclosed or otherwise communicated to the Board of Directors of Company and not have been withdrawn or (2) pursuant to Section 7.1(f) due to a breach of Company's covenants contained in Section 5.6(b), then Company shall pay to Parent the Company Termination Fee, by wire transfer to such account designated by Parent in immediately available funds, in the case of any termination by Parent, within two business days of such termination, and in the case of any termination by Company, prior to or concurrently with such termination. (d) If this Agreement is terminated by Parent pursuant to Section 10.1(c)(i7.1(f) due to a breach of Company's covenants contained in this Agreement or the Parent Loan Agreement (other than due to a breach for which the Termination Fee is payable under Section 7.3(c)), then Company shall pay to Parent the Company Termination Fee, by wire transfer to the account designated by Parent in the event that immediately available funds, within two business days following such termination, and Parent's Expenses. (e) If this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii7.1(i), then, in each case, then the Company Parent shall pay to Parentthe Company the Parent Termination Fee, either by wire transfer of to the account designated by Company in immediately available funds, a fee in the within two business days following such termination or, at Parent’s election, by applying such amount of $65,000,000 (the “Company Termination Fee”) at or prior to the termination reduction of this the principal, interest, and other amounts payable by Company under the Parent Loan Agreement (it being understood that if the Parent elects to make such a reduction, the Parent Loan Agreement shall otherwise remain payable in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(iaccordance with its terms). (bf) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for For purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.term:

Termination Fees; Expenses. (a) Except as otherwise provided in this Section 8.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. (b) In the event that: (i) (A) a bona fide Acquisition Proposal shall have been made known to the Company, the Board, or senior management of the Company, or shall have been made directly to the stockholders of the Company or any Person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Acquisition Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(i) at a time when Parent would have been entitled to terminate this Agreement pursuant to Section 8.1(d)(i) or 8.1(d)(ii) and (C) the Company consummates an Acquisition Proposal, within nine (9) months of the date this Agreement is terminated (provided that for purposes of this Section 8.3(b)(i), the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”); or (ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii); or (iii) this Agreement is terminated by Parent pursuant to Section 10.1(c)(i8.1(d)(iii). then in any such event under clause (i), (ii) or (iii) of this Section 8.3(b), the Company shall pay to Parent or an Affiliate of Parent designated in writing by Parent (“Payee”) a termination fee of $3.5 million in cash (the “Termination Fee”), it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. Any payment required to be made pursuant to clause (i) of Section 8.3(b) shall be made to Payee on the date an Acquisition Proposal is consummated. Any payment required to be made pursuant to clause (ii) or (iii) of Section 8.3(b) shall be made to Payee concurrently with, and as a condition to the effectiveness of, the termination of this Agreement; and in each case such payment shall be made by wire transfer of immediately available funds to an account to be designated by Parent. In the event that Parent shall receive the Termination Fee, the receipt of such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Subsidiary, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Subsidiary, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any other claim, action or proceeding against the Company or any of its Affiliates arising out of this Agreement, any of the transactions contemplated hereby or any matters forming the basis for such termination. (c) In the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii8.1(c)(i), thenthen Parent shall promptly, but in each caseno event later than two business days after the date of such termination, pay or cause to be paid to the Company shall pay to Parent, by wire transfer of immediately available funds, same day funds (it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion) a termination fee in the amount of $65,000,000 5.5 million in cash (the “Company Parent Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i). (b) . In the event that the Company shall receive the Parent Termination Fee, the receipt of such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company, any of its respective Affiliates or any other Person in connection with this Agreement is terminated by (and the Company or Parent pursuant to Section 10.1(b)(itermination hereof), the transactions contemplated hereby (and the abandonment thereof) or in any matter forming the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after basis for such termination, and none of the Company (A) enters into an agreement with respect Company, any of its respective Affiliates or any other Person shall be entitled to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated bring or (B) consummates a Company Acquisition Proposalmaintain any other claim, then, in any such eventaction or proceeding against the Parent, the Company shall pay to Parent, by wire transfer Merger Subsidiary or any of immediately available funds, the Company Termination Fee concurrently with the consummation their Affiliates arising out of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 any of the transactions contemplated hereby and (iii) thator any matters forming the basis for such termination, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this including those under Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once6.18 hereof. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in the event that If this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii7.1(i), then, in each case, then the Company shall pay to ParentLinnCo the Company Termination Fee, by wire transfer of to the account designated by LinnCo in immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at or prior to the upon termination of this Agreement in and as a condition to the case effectiveness of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i). (b) In If this Agreement is terminated by any Linn Party or the event that Company pursuant to Section 7.1(d)(i) and prior to the Company Stockholders’ Meeting, any person (other than any Linn Party or any of their respective affiliates) shall have made a Company Takeover Proposal, which shall have been publicly announced or publicly disclosed or otherwise publicly communicated to the Board of Directors of the Company and not have been withdrawn at least ten (10) days prior to the Company Stockholders’ Meeting, then the Company shall pay to LinnCo the LinnCo Expenses, by wire transfer to the account designated by LinnCo in immediately available funds, within two business days following the Company Stockholders’ Meeting, and, if within twelve months after such termination of this Agreement, the Company shall have consummated, or shall have entered into an agreement to consummate (which may be consummated after such twelve-month period), a Company Takeover Proposal, then the Company shall pay to LinnCo an amount equal to the Company Termination Fee minus the LinnCo Expenses previously paid or reimbursed by the Company, by wire transfer to the account designated by LinnCo in immediately available funds, on the earlier of the public announcement of the Company’s entry into such agreement or the consummation of any such Acquisition Transaction. (c) If this Agreement is terminated (i) by any Linn Party pursuant to Section 7.1(g), (ii) by the Company pursuant to Section 7.1(b) and, at the time of such termination, (A) the Company Stockholder Approval shall not have been obtained and (B) any Linn Party would have been permitted to terminate this Agreement pursuant to Section 7.1(g), or (iii) by any Linn Party (1) pursuant to Section 7.1(f) due to a breach of the Company’s covenants contained in this Agreement and, at the time of such breach, a Company Takeover Proposal shall have been announced or disclosed or otherwise communicated to the Board of Directors of the Company and not have been withdrawn or (2) pursuant to Section 7.1(f) due to a breach of the Company’s covenants contained in Section 5.6(b), then the Company shall pay to LinnCo the Company Termination Fee, by wire transfer to such account designated by LinnCo in immediately available funds, in the case of any termination by any Linn Party, within two business days of such termination, and in the case of any termination by the Company, prior to or concurrently with such termination. (d) If this Agreement is terminated (i) by the Company pursuant to Section 7.1(h), (ii) by any Linn Party pursuant to Section 7.1(b) and, at the time of such termination, (A) one or both of the LinnCo Shareholder Approvals or the Linn Member Approval shall not have been obtained and (B) the Company would have been permitted to terminate this Agreement pursuant to Section 7.1(h), or (iii) by the Company pursuant to Section 7.1(e) due to a breach of a Linn Party’s covenants contained in Section 5.6(c), then LinnCo shall pay to the Company the LinnCo Termination Fee, by wire transfer to such account designated by the Company in immediately available funds, in the case of any termination by the Company, within two business days of such termination, and in the case of any termination by any Linn Party, prior to or concurrently with such termination. (e) If this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i7.1(e) due to a breach of a Linn Party’s covenants contained in this Agreement (other than due to a breach of Section 5.6(c)), or then LinnCo shall pay to the Company the Company Expenses, by wire transfer to the account designated by the Company in the event that immediately available funds, within two business days following such termination. (f) If this Agreement is terminated by Parent any Linn Party pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i7.1(f) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect due to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation breach of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements Company’s covenants contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, Agreement (ii) other than due to a breach for which the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this under Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.37.3(c)), then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suitto LinnCo the LinnCo Expenses, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of to the account designated by LinnCo in immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than oncefunds, within two business days following such termination. (dg) Other than in the case Solely for purposes of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.37.3, “Company Takeover Proposal” shall have the payment of the Company Termination Fee meaning ascribed thereto in Section 8.15(b), except that all references to 25% shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement changed to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby50%.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i9.1(c)(i) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii9.1(d)(ii), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) Fee at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii9.1(d)(ii) or as promptly as practicable (practicable, and, in any event, within two Business Days following following, such termination) termination in the case of a termination pursuant to Section 10.1(c)(i9.1(c)(i). (b) In the event that (i) this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i9.1(b)(i) or Section 9.1(b)(iii), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement (ii) prior to such termination (i) termination, a Company Acquisition Proposal has been made to the Company Board or the Company and has been publicly announced and has not been withdrawn prior to the termination of this Agreement and (iiiii) within twelve 12 months after such termination, the Company (A) enters into an a definitive agreement with respect to a Company Acquisition Proposal and or consummates a Company Acquisition Proposal is subsequently consummated (whether or (B) consummates a not the same Company Acquisition ProposalProposal as that referred to in clause (ii) above), then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently (less any Expense Reimbursement previously paid to Parent by the Company in accordance with Section 9.3(c)), within two Business Days following the consummation earliest to occur of the transaction arising from a Company Acquisition Proposalevents described in clause (iii) of this Section 9.3(b); provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b9.3(b), references to “1520%” shall be replaced by “50%”. (c) In the event that this Agreement is terminated pursuant to Section 9.1(b)(iii) and, at such time, the Company Termination Fee is not otherwise payable as a result of such termination, then the Company shall pay to Parent an amount equal to the reasonable and documented out-of-pocket expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby, including the Debt Financing (including fees and expenses of counsel, accountants, investment bankers, other advisors and financing sources), up to $10 million (the amount paid pursuant to this Section 9.3(c), the “Expense Reimbursement”), within two Business Days following the date of Parent’s delivery of an invoice therefor, by wire transfer in immediately available funds to the account(s) designated in writing by Parent to the Company; provided that the existence of circumstances which could require the Company Termination Fee (less any Expense Reimbursement previously paid to Parent by the Company) to become subsequently payable by the Company shall not relieve the Company of its obligations to pay the Expense Reimbursement pursuant to this Section 9.3(c); provided, further, that the payment by the Company of the Expense Reimbursement pursuant to this Section 9.3(c) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee (less any Expense Reimbursement previously paid to Parent by the Company). (d) In the event that this Agreement is terminated (i) by the Company or Parent pursuant to (A) Section 9.1(b)(i) and at such time, (x) the only conditions set forth in Section 8.1 and Section 8.2 that shall not have been satisfied or waived as of such time (other than those conditions that by their terms are to be satisfied at the Closing and are capable of being satisfied) are the conditions set forth in Section 8.1(b), or Section 8.1(c) (with respect to any law or order arising under any competition law) or (y) the Company could have terminated this Agreement pursuant to Section 9.1(d)(iii) or Section 9.1(b)(ii) (with respect to any Law or Order arising under any Competition Law), or (ii) by the Company pursuant to Section 9.1(d)(i) or Section 9.1(d)(iii), then, in each such case, (x) the Company shall be entitled to be paid a fee in the amount of $80,000,000 (the “Parent Termination Fee”) and (y) Parent shall pay to the Company, by wire transfer of immediately available funds, the Parent Termination Fee as promptly as practicable (and, in any event, within two Business Days) following such termination. (e) The Parties acknowledge that (i) the agreements contained in this Section 10.3 9.3 are an integral part of the transactions contemplated by this Agreement, and (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter have entered into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 10.39.3, and, in order to obtain such payment, Parent the other Party commences a suit that results in a judgment against the Company defaulting Party for any the amount due pursuant to this Section 10.39.3, or any portion of such amount, then the Company such defaulting Party shall pay Parent the other Party its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 9.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent 5% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as that is the maximum permitted by applicable Law). All payments under this Section 10.3 9.3 shall be made by wire transfer of immediately available funds to an account the account(s) designated in writing by ParentParent or the Company, as applicable. In no event shall a Company Termination Fee or Parent Termination Fee be payable more than once. (df) Other Notwithstanding anything in this Agreement to the contrary, subject to Section 10.13 and other than in the case of Willful Breach (it being agreed that, if Parent and Merger Sub are not otherwise in material breach of any of their representations, warranties, covenants or agreements contained in this Agreement, any failure by Parent and Merger Sub to consummate the Company, subject Closing that results from a Financing Failure shall not in and of itself be deemed to Section 11.12, be a Willful Breach by Parent or Merger Sub): (i) in the event that this Agreement is terminated under circumstances where in which the Company Termination Fee is payable pursuant to this Section 10.39.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent, Merger Sub, the Debt Financing Parties and any of their respective former, current or future stockholders, directors, officers, employees, Affiliates and Representatives (the “Parent and Purchaser Related Parties”) against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, (X) none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or any of the transactions contemplated hereby (whether at Law or in equity and whether based on contract, tort or otherwise), (Y) none of the Parent Related Parties shall seek to recover any other damages or seek any other remedy, whether based on a claim at Law or in equity, in Contract, tort or otherwise, with respect to any losses or damages suffered in connection with this Agreement or the transactions contemplated hereby, and (Z) Parent shall cause any claim which is brought by any Parent Related Party against any Company Related Party and which is inconsistent with the limitations set forth in this Section 9.3(f)(i) to be dismissed promptly and in any event within five Business Days after it is first initiated; and (ii) in the event that this Agreement is terminated under circumstances in which the Parent Termination Fee is payable pursuant to this Section 9.3, the payment of the Parent Termination Fee shall be the sole and exclusive remedy (whether based on a claim at Law or in equity, in Contract, tort or otherwise) of the Company, its Subsidiaries and the Other Company Related Parties against Parent, Merger Sub, the other Parent Related Parties and the Debt Financing Source Parties for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement or Debt Commitment Letters to be consummated or for a breach or failure to perform hereunder, thereunder or otherwise, and upon payment of such amount, (X) none of the Parent Related Parties nor the Debt Financing Source Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Debt Commitment Letters or any of the transactions contemplated hereby (including the Debt Financing) or thereby (whether at Law or in equity and whether based on contract, tort or otherwise), (Y) none of the Company, its Subsidiaries or any other Company Related Party shall seek to recover any other damages or seek any other remedy, whether based on a claim at Law or in equity, in Contract, tort or otherwise, with respect to any losses or damages suffered in connection with this Agreement, the Debt Commitment Letters or the transactions contemplated hereby (including the Debt Financing), and (Z) the Company shall cause any claim which is brought by any Company Related Party against any Parent Related Party or Debt Financing Source Party and which is inconsistent with the limitations set forth in this Section 9.3(f)(ii) to be dismissed promptly and in any event within five Business Days after it is first initiated. (iii) For the avoidance of doubt, while each of the Company and Parent may pursue both a grant of specific performance and the payment of the Parent Termination Fee or the Company Termination Fee under this Section 9.3, as applicable, under no circumstances shall the Company or Parent be permitted or entitled to receive both (x) a grant of specific performance to cause Parent to make the payment of the Merger Consideration and the other Merger Amounts and to cause the Effective Time to occur and to consummate the Closing and (y) the payment of the Parent Termination Fee or the Company Termination Fee, as applicable.

Termination Fees; Expenses. (a) In If the event Company terminates this Agreement as permitted by Section 8.1(f) or 8.1(g), then simultaneous with and as a condition precedent to such termination’s being effective, the Company will pay Acquisition a termination fee of $25 million (or, if the Superior Proposal Notice is given to Parent not later than 10 business days after the end of the Transaction Solicitation Period and the Superior Proposal to which it relates is from a person that gave the Special Committee a written Acquisition Proposal during the Transaction Solicitation Period, $15 million), which sum will be credited against any termination fee to which FIDAC becomes entitled because of termination of the Management Agreement between the Company and FIDAC within one year after this Agreement is terminated terminated. (b) If Parent terminates this Agreement as permitted by Parent pursuant to Section 10.1(c)(i) or in the event that 8.1(h), within 10 days after this Agreement is terminated terminated, the Company will pay Acquisition a termination fee of $25 million, which sum will be credited against any termination fee to which FIDAC becomes entitled because of termination of the Management Agreement between the Company and FIDAC within one year after this Agreement is terminated. (c) Notwithstanding anything herein to the contrary, in no event shall the Company be obligated to pay a termination fee on more than one occasion. Parent and Acquisition acknowledge and agree that if a termination fee becomes payable and is paid by the Company pursuant to Section 10.1(d)(ii8.4(a) or (b) above, the right to receive such termination fee, together with any reimbursement of expenses pursuant to Section 8.4(d) below, shall constitute each of Parent’s and Acquisition’s (and each of their respective affiliates’ and representatives’) sole and exclusive remedy under this Agreement, and the receipt of such termination fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by any of them in connection with this Agreement or any of the transactions contemplated hereby (or the abandonment or termination thereof), and none of Parent, Acquisition, any of their respective affiliates or representatives or any other person shall be entitled to bring or maintain any claim, action or proceeding against the Company or any of its affiliates arising out of or in connection with this Agreement or any of the transactions contemplated hereby (or the abandonment or termination thereof). For the avoidance of doubt, Parent and/or Acquisition shall not be entitled to specific performance under Section 13.12 if the Company has terminated this Agreement and paid any applicable termination fee in full. (d) If the Company terminates this Agreement as permitted under Section 8.1(f) or if Parent terminates this Agreement as permitted under Section 8.1(h), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days 10 business days following such termination) in the case of a termination pursuant to Section 10.1(c)(i). (b) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement will reimburse Parent for all expenses incurred by it or by Acquisition in connection with respect to a Company Acquisition Proposal this Agreement and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, it (ii) including reasonable fees and expenses of professionals and other consultants and out of pocket costs incurred by employees in investigating the business and financial condition of the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent and in connection with the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating negotiation of this Agreement and in reliance on efforts to carry out the transactions which are the subject of this Agreement and on Agreement) for which Parent has presented reasonable documentation to the expectation Company (up to a total reimbursement of expenses not exceeding $5,000,000), which sum will be credited against any termination fee to which FIDAC becomes entitled because of termination of the consummation of the transactions contemplated hereby and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if Management Agreement between the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that FIDAC within one year after this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated herebyterminated.

Termination Fees; Expenses. (a) In Except as otherwise provided in this Section 8.3, whether or not the event that Merger is consummated, all Expenses incurred in connection with this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in the event that this Agreement is terminated shall be paid by the Company pursuant to Section 10.1(d)(ii), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at party incurring such cost or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i)expense. (b) In the event that that: (i) (A) a bona fide Acquisition Proposal shall have been made known to the Company, the Board, or senior management of the Company, or shall have been made directly to the stockholders of the Company or any Person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Acquisition Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i8.1(b)(i) (Failure to close by End Date), Section 8.1(d)(i) (Company breach of representation or warranty) or Section 8.1(d)(ii) (Company breach of covenant) and (C) the Company consummates an Acquisition Proposal, within twelve (12) months of the date this Agreement is terminated (provided that for purposes of this Section 8.3(b)(i), the references to “15%” in the event that definition of Acquisition Proposal shall be deemed to be references to “50%”); or (ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) (Company receipt of Superior Proposal); or (iii) this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii8.1(d)(iii) (Company change in recommendation), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, ; then, in any such event, the Company shall pay to ParentParent or an Affiliate of Parent designated in writing by Parent (“Payee”) a termination fee of $12,751,000 in cash (the “Termination Fee”), it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. (c) Any payment required to be made pursuant to clause (i) of Section 8.3(b) shall be made to Payee on the date an Acquisition Proposal is consummated; any payment required to be made pursuant to clause (ii) or (iii) of Section 8.3(b) shall be made to Payee within two (2) Business Days of notice of the occurrence thereof to the Company; and in each case such payment shall be made by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references funds to “15%” shall an account to be replaced designated by “50%”Parent. (cd) The Parties acknowledge In the event that the Company shall terminate this Agreement pursuant to Section 8.1(c)(i) (Parent breach of representation or covenant), or Section 8.1(c)(iii)(B) (Merger Subsidiary failure to accept Shares), then, within two (2) Business Days of notice thereof, Parent shall pay to the Company a termination fee of $20,037,000 in cash (the “Parent Termination Fee”), it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Such payments shall be made by wire transfer of immediately available funds to an account to be designated by the Company. (e) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 10.3 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company damages resulting from termination of this Agreement under circumstances where a Termination Fee or a Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 8.3(b) and Section 8.3(d) are not a penalty, but rather is are a reasonable amount that will compensate Parent in and Merger Subsidiary, with respect to Section 8.3(b), and the circumstances in which such fee is payable Company, with respect to Section 8.3(d), 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 hereby, which amount would otherwise be impossible to calculate with precision, and (iii) that, without these agreementsthe agreements contained in this Section 8.3, the Parties parties would not enter have entered into this Agreement. Accordingly, if the Company fails to timely promptly pay any amount due pursuant to this Section 10.3, 8.3(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amount set forth in Section 8.3(b) or any amount due pursuant to this Section 10.3portion thereof, then the Company shall pay to Parent the Expenses incurred by the prevailing party and its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) Affiliates in connection with such suit, together with interest on the amount due pursuant of such amount or portion thereof at a rate equal to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published reported in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is through the maximum permitted by applicable Law)date of payment. All payments under this Section 10.3 shall be made by wire transfer of immediately available funds Likewise, if Parent fails to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable promptly pay any amount due pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.to

Termination Fees; Expenses. (a) In the event that: (i) (A) a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal after the date of this Agreement, (B) this Agreement is subsequently terminated (x) by either party pursuant to Section 8 . 1 (b)(i) 64 (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or Parent has the right to terminate pursuant to Section 8 . 1 (d)(i) (Company Breach)), (y) by either party pursuant to Section 8 . 1 (b)(iii) (Company Stockholder Approval) or (z) by Parent pursuant to Section 8 . 1 (d)(i) (Company Breach) or Xxxxxxx 0 . 0 (x)(xxx) (Xxxxxx of Non - Solicitation Covenants) and at the time of such termination in the case of clauses (x) and (y) (or at the time of such breach in the cause of clause (z)) a Competing Proposal has been publicly announced (or privately made to the Company in the case of clauses (x) and (z)) after the date of this Agreement and has not been withdrawn, and (C) within twelve (12) months of such termination of this Agreement, the Company consummates a transaction involving any Competing Proposal or enters into an Alternative Acquisition Agreement regarding any Competing Proposal and any Competing Proposal is subsequently consummated ; provided, however, that for purposes of this Section 8 . 3 (a)(i) , the references to “twenty percent ( 20 % )” in the definition of Competing Proposal shall be deemed to be references to “fifty percent ( 50 % )” ; (ii) this Agreement is terminated by Parent pursuant to Section 10.1(c)(i8.1(d)(ii) (Adverse Recommendation Change); (iii) (A) the Company Board shall have made an Adverse Recommendation Change and (B) this Agreement is terminated by either party pursuant to Section 8 . 1 (b)(i) (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or Parent has the right to terminate pursuant to Section 8 . 1 (d)(i) (Company Breach) or in the event that Section 8 . 1 (b)(iii) (Company Stockholder Approval), or by Parent pursuant to Section 8 . 1 (d)(i) (Company Breach)) ; (iv) this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii8.1(c)(ii) (Superior Proposal), then, in each case, ; or (v) this Agreement is terminated by Parent pursuant to Section 8.1(d)(iii) (Breach of Non - Solicitation Covenants); then the Company shall pay pay, or cause to Parentbe paid, by wire transfer of immediately available funds, a fee in to or at the amount direction of $65,000,000 Parent, (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such terminationx) in the case of a termination clauses (i), (ii), (iii) and (iv) above, one hundred percent ( 100 % ) of the Termination Fee (reduced by the portion of the Termination Fee previously paid pursuant to Section 10.1(c)(ithe immediately succeeding clause (y). , if any) and (by) In in the case of clauses (v) above, an amount equal to Parent’s Expenses (provided that such amount shall not exceed $ 15 million) (it being understood that in no event that this Agreement is terminated by shall the Company be required to pay more than 100 percent ( 100 % ) of the Termination Fee), (A) in the case of clause (i) above, on the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clauses (ii) or Parent pursuant to Section 10.1(b)(i(v), or if Parent is the terminating party in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(iicase of clause (iii), and in each case at any time no later than two ( 2 ) Business Days after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (iiC) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by clause (iv), or if the CompanyCompany is the terminating party in the case of clause (iii), prior to or substantially concurrently with such termination . (b) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 11.129.9 , Parent’s receipt in full of the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.38.3 , the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.in

Termination Fees; Expenses. (a) In the event that this Agreement is terminated terminated, or at the time of termination, could have been terminated, by Parent pursuant to Section 10.1(c)(i10.01(c)(i) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii10.01(d)(ii), then, in each case, the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent a fee in the amount of $65,000,000 750,000,000 (the “Company Termination Fee”) (less any payment made by the Company pursuant to Section 10.03(c)) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii10.01(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i10.01(c)(i). (b) In the event that this Agreement is terminated, or at the time of termination, could have been terminated by the Company or Parent pursuant to Section 10.1(b)(i10.01(b)(iv), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii10.01(c)(ii)(B) or by the Company or Parent pursuant to Section 10.01(b)(i) (and at such time Parent could have terminated this Agreement pursuant to Section 10.01(c)(ii)(B)), and in each case (I) at any time after the date of this Agreement and (A) in the case of a termination pursuant to Section 10.01(c)(ii)(B) or Section 10.01(b)(i), prior to such termination (i) the applicable Company breach, a Company Acquisition Proposal has shall have been made or communicated to the Company and Board (whether or not publicly announced or publicly made known) and has shall not have been withdrawn withdrawn, or (B) in the case of a termination pursuant to Section 10.01(b)(iv), prior to the termination taking of a vote to adopt this Agreement at the Company Stockholder Meeting or at any adjournment or postponement thereof, a Company Acquisition Proposal shall have been publicly announced or publicly made known and shall not have been withdrawn, and (iiII) within twelve nine months after such termination, the Company (A) enters shall have entered into an agreement with respect to a any Company Acquisition Proposal, or any Company Acquisition Proposal and a shall have been consummated (in each case, whether or not such Company Acquisition Proposal is subsequently consummated or (B) consummates a the same as the original Company Acquisition ProposalProposal made, communicated, publicly made known or publicly announced), then, in any such event, the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent the Company Termination Fee concurrently (less any payment made by the Company pursuant to Section 10.03(c)) on the earlier to occur of the Company entering into an agreement with respect to such Company Acquisition Proposal or the consummation of the transaction arising from a such Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b10.03(b), references to “15%” shall be replaced by “50%.” (c) In the event this Agreement is terminated, or at the time of termination, could have been terminated, by Parent or the Company pursuant to Section 10.01(b)(iv) at a time when the Company Termination Fee is not otherwise payable, then the Company shall pay, by wire transfer of immediately available funds, to Parent an amount equal to 50% of the documented, out of pocket expenses incurred by Parent and its Subsidiaries in connection with the Financing (but in no event shall such payment to Parent exceed $130 million), as promptly as practicable (and in any event, within two Business Days) following receipt of an invoice therefor. (cd) The Parties acknowledge that (i) the agreements contained in this Section 10.3 10.03 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly; accordingly, if the Company fails promptly to timely pay any amount due pursuant to this Section 10.310.03, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.310.03, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 10.03 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law)made. All payments under this Section 10.3 10.03 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (de) Other Each Party agrees that notwithstanding anything in this Agreement to the contrary (other than with respect to claims for, or arising out of or in the case of connection with fraud, or a Willful Breach of Section 8.03 by the Company, subject to Section 11.12, ) (A) in the event that this Agreement is terminated under circumstances where the Company Termination Fee is would be payable pursuant to this Section 10.310.03, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent Parent, its Subsidiaries, stockholders, Affiliates, officers, directors, employees and Purchaser Representatives against the Company and its Subsidiaries and or any of their respective formerits Representatives or Affiliates for, current (B) in no event will Parent or future stockholdersany other such person being paid the Company Termination Fee seek to recover any other money damages or seek any other remedy (including any remedy for specific performance, directorsexcept solely in compliance with Section 11.12 hereof) based on a claim in law or equity with respect to, officers(1) any loss suffered, Employeesdirectly or indirectly, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by Merger to be consummated, (2) the termination of this Agreement, (3) any liabilities or obligations arising under this Agreement or (4) any claims or actions arising out of or relating to be consummated or for a breach any breach, termination or failure to perform hereunder of or otherwise, under this Agreement and (C) upon payment of such amountany Company Termination Fee in accordance with this Section 10.03, none of the Company Related Parties or any Affiliates or Representatives of the Company shall have any further liability or obligation to another Party relating to or arising out of this Agreement or the transactions contemplated herebyAgreement.

Termination Fees; Expenses. (a) Except as otherwise provided in this Section 7.3, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. (b) In the event that: (i) (A) a bona fide Acquisition Proposal shall have been made known to the Company, the Board of Directors of the Company, or shall have been made directly to the stockholders of the Company or any Person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Acquisition Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i), Section 7.1(b)(iii) or Section 7.1(d)(i) and (C) the Company enters into a definitive agreement with respect to an Acquisition Proposal or consummates an Acquisition Proposal within twelve (12) months of the date this Agreement is terminated (provided that for purposes of this Section 7.3(b)(i), the references to “15%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”); (ii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii); or (iii) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii); then in any such event under clause (i), (ii) or (iii) of this Section 7.3(b), the Company shall pay in cash to Parent an amount equal to (A) $325,000 (the “Termination Fee”), plus (B) any reasonable out-of-pocket fees and expenses incurred or paid by or on behalf of Parent and/or Merger Subsidiary in connection with the Merger or the consummation of any of the transactions contemplated by this Agreement, including all documented reasonable fees and expenses of law firms, investment banking firms, accountants, experts and consultants to Parent and/or Merger Subsidiary (the “Expenses”), it being understood that in no event shall the Company be required to pay the Termination Fee or reimburse Parent’s Expenses on more than one occasion. (c) In the event that this Agreement is terminated by Parent pursuant to (i) Section 10.1(c)(i7.1(b)(iii) and thereafter the Company enters into a definitive agreement with respect to an Acquisition Proposal or in consummates an Acquisition Proposal within twelve (12) months of the event that date this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i). (b) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, provided that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b7.3(c)(i), the references to “15%” in the definition of Acquisition Proposal shall be replaced by deemed to be references to “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, or (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.37.1(d)(i), then in any such event the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) Parent’s Expenses in connection with such suitcash to Parent, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published it being understood that in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a the Company Termination Fee be payable required to reimburse Parent’s Expenses on more than onceone occasion. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated terminated, or at the time of termination, could have been terminated, by Parent pursuant to Section 10.1(c)(i10.01(c)(i) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii10.01(d)(ii), then, in each case, the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent a fee in the amount of $65,000,000 367,000,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii10.01(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i10.01(c)(i). (b) In the event that this Agreement is terminated, or at the time of termination, could have been terminated by the Company or Parent pursuant to Section 10.1(b)(i10.01(b)(iv), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii10.01(c)(ii)(B) or by the Company or Parent pursuant to Section 10.01(b)(i) (and at such time Parent could have terminated this Agreement pursuant to Section 10.01(c)(ii)(B)), and in each case (I) at any time after the date of this Agreement and (A) prior to such termination (ix) a Company Acquisition Proposal has shall have been made or communicated to the Company and Board (whether or not publicly announced or publicly made known) and has shall not have been withdrawn and (y) the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements under this Agreement in a manner that would give rise to the failure of a condition under this Agreement, (B) or prior to the applicable Company breach (in the case of a termination pursuant to Section 10.01(c)(ii)(B) or Section 10.01(b)(i)), a Company Acquisition Proposal shall have been made or communicated to the Company Board (whether or not publicly announced or publicly made known) and shall not have been withdrawn, or (C) prior to the taking of a vote to adopt this Agreement at the Company Stockholder Meeting or at any adjournment or postponement thereof (in the case of a termination pursuant to Section 10.01(b)(iv)) a Company Acquisition Proposal shall have been publicly announced or publicly made known and shall not have been withdrawn, and (iiII) within twelve nine months after such termination, the Company (A) enters shall have entered into an agreement with respect to a any Company Acquisition Proposal, or any Company Acquisition Proposal and a shall have been consummated (in each case, whether or not such Company Acquisition Proposal is subsequently consummated or (B) consummates a the same as the original Company Acquisition ProposalProposal made, communicated, publicly made known or publicly announced), then, in any such event, the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent the Company Termination Fee concurrently on the earlier to occur of the Company entering into an agreement with respect to such Company Acquisition Proposal or the consummation of the transaction arising from a such Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b10.03(b), references to “15%” shall be replaced by “50%.”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In If this Agreement is terminated by BRE pursuant to Section 7.1(h), then BRE shall pay to Parent the event Termination Fee and Parent's Expenses, by wire transfer to the account designated by Parent in immediately available funds, upon termination of this Agreement and as a condition to the effectiveness of such termination. (b) If this Agreement is terminated by BRE pursuant to Section 7.1(d)(ii) and prior to the receipt by BRE of the BRE Stockholder Approval, any person (other than Parent or any of its affiliates) shall have made a Takeover Proposal, which shall have been publicly announced or publicly disclosed or otherwise publicly communicated to the Board of Directors of BRE, then BRE shall pay to Parent the Parent Expenses, by wire transfer to the account designated by Parent in immediately available funds, and, if within twenty-four months after such termination of this Agreement, BRE shall have consummated, or shall have entered into an agreement to consummate (which may be consummated after such 24-month period), a Takeover Proposal, then BRE shall pay to Parent an amount equal to the Termination Fee minus Parent Expenses previously paid or reimbursed by BRE, by wire transfer to the account designated by Parent in immediately available funds, on the earlier of the public announcement of BRE's entry into such agreement or the consummation of any such Acquisition Transaction. (c) If this Agreement is terminated (i) by Parent pursuant to Section 7.1(g), (ii) by BRE pursuant to Section 7.1(b) and, at the time of such termination, (A) the BRE Stockholder Approval shall not have been obtained and (B) Parent would have been permitted to terminate this Agreement pursuant to Section 7.1(g), or (iii) by Parent (1) pursuant to Section 7.1(f) due to a breach of BRE's covenants contained in this Agreement and, at the time of such breach, a Takeover Proposal shall have been announced or disclosed or otherwise communicated to the Board of Directors of BRE and not have been withdrawn or (2) pursuant to Section 7.1(f) due to a breach of BRE's covenants contained in Section 5.6(b), then BRE shall pay to Parent the Termination Fee, by wire transfer to such account designated by Parent in immediately available funds, in the case of any termination by Parent, within two business days of such termination, and in the case of any termination by BRE, prior to or concurrently with such termination. By way of clarification only, the parties acknowledge and agree that if the Agreement is terminated by Parent pursuant to Section 7.1(f) solely by reason of a failure of BRE to meet the condition set forth in Section 6.3(f), no Termination Fee shall be payable. (d) If this Agreement is terminated by BRE pursuant to Section 7.1(e) due to a breach of Parent's covenants contained in this Agreement (other than due to a breach of Section 5.6(c)), then Parent shall pay to BRE the Termination Fee, by wire transfer to the account designated by BRE in immediately available funds, within two business days following such termination. (e) If this Agreement is terminated by Parent pursuant to Section 10.1(c)(i7.1(f) or due to a breach of BRE's covenants contained in the event that this Agreement (other than due to a breach for which the Termination Fee is terminated by the Company pursuant to payable under Section 10.1(d)(ii7.3(c)), then, in each case, the Company then BRE shall pay to ParentParent the Termination Fee, by wire transfer of to the account designated by Parent in immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days business days following such termination) in the case of a termination pursuant to Section 10.1(c)(i), and Parent's Expenses. (bf) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that Solely for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b)7.3, "Takeover Proposal" shall have the meaning ascribed thereto in Appendix 1 hereto, except that all references to “15%” 25% shall be replaced by “changed to 50%”. (cg) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part For purposes of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.term:

Termination Fees; Expenses. (1) The Company shall pay the Termination Fee to Parent, by way of a wire transfer in immediately available funds to an account specified by Parent, if: (a) In this Agreement is terminated in the event that circumstances set out in Section 9.2(6), Section 9.2(7) or Section 9.2(8); (b) this Agreement is terminated by Parent pursuant to Section 10.1(c)(i9.2(9) as a result of the Company being in default of any of its obligations or covenants contained in 0; or (i) prior to the event that Meeting, (A) an Acquisition Proposal shall have been publicly announced or any Person shall have publicly announced an intention to make an Acquisition Proposal or (B) a report under the early warning requirements (as defined in National Instrument 62 – 103 -- The Early Warning System and Related Take-Over Bid and Insider Reporting Issues of the Canadian securities administrators) in connection with the acquisition of any Shares of the Company, is filed by any Person (other than Parent or any of its Affiliates); (ii) this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii9.2(4); and (iii) at least a majority of the shares or other ownership, voting or equity interests of the Company or of the assets of the Company and its Subsidiaries taken as a whole shall have been acquired under by any Person within the six-month period following the date of termination of this Agreement (other than as a result of a rights offering made available to all Shareholders). (2) Such payment shall be due: (a) in the case of a termination specified in Section 9.3(1)(a) or Section 9.3(1)(b), then, forthwith (and in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”any event within five business days) at or prior to following the termination of this Agreement but prior to or concurrently with termination in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable 9.2(8); and (and, in any event, within two Business Days following such terminationb) in the case of the circumstances specified in Section 9.3(1)9c), within two business days following the execution by the Company of a termination pursuant binding agreement with respect thereto and if no such agreement is executed, prior to Section 10.1(c)(i)or concurrently with the consummation of the Acquisition Proposal. (b3) In the event that this Agreement is terminated by the The Company or Parent pursuant to Section 10.1(b)(i)shall pay, or in the event that this Agreement is terminated by cause to be paid, to Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently reasonable documented expenses of the Parent and its affiliates incurred in connection with the consummation of the transaction arising from transactions contemplated hereby (other than any expenses related to a Company Acquisition Proposal; providedbroker, however, that for purposes of the definition of “Company Acquisition Proposal” in finder or investment banker) not to exceed $1.5 million if: (a) this Agreement shall have been terminated pursuant to Section 10.3(b9.2(4); (b) this Agreement shall have been terminated by Parent pursuant to Section 9.2(2), references provided that the reason that the Effective Time did not occur prior to “15%” shall be replaced the Outside Date was the failure by “50%”.the Company to complete the Transactions hereby when required to do so; or (c) The Parties acknowledge that (ithis Agreement shall have been terminated by Parent pursuant to Section 9.2(9) the agreements contained in this Section 10.3 are an integral part of the transactions other than as contemplated by this AgreementSection 9.3(1)(b). For greater certainty, (ii) the Company Termination Fee is not a penaltyif, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay after making any amount due payment pursuant to this Section 10.39.3(3), andit is subsequently determined that Parent is entitled to the Termination Fee under Section 9.3(1), in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 9.3(3) shall be made treated as payment against the Termination Fee payable under Section 9.3(1) and not in lieu thereof. (4) In no event shall the Company be obligated to pay under this Section, in the aggregate, an amount in excess of the Termination Fee. (5) Acquisition Sub shall pay, or cause to be paid, to the Company, by way of a wire transfer of in immediately available funds to an account designated in writing specified by Parent. In no event shall a Company the Company, an amount equal to the Termination Fee be payable more than once. (dif this Agreement shall have been terminated by the Company pursuant to Section 9.2(2) Other than or Section 9.2(10 , provided that in the case of Willful Breach by the Company, subject termination pursuant to Section 11.129.2(2) the reason that the Effective Time did not occur prior to the Outside Date was the failure by Parent to complete the Transactions hereby when required to do so. Such payment shall be made within two Business Days of any such termination. (6) The Parties acknowledge that all of the payments of amounts set out in this Section 9.3 represents liquidated damages which are a genuine pre-estimate of the damages, in including opportunity costs, which a Party will suffer or incur as a result of the event giving rise to such payment and the resultant termination of this Agreement, and are not penalties. Each Party irrevocably waives any right it may have to raise as a defence that this Agreement is terminated under circumstances where any such liquidated damages are excessive or punitive. Subject to Section 9.4, for greater certainty, the Company Termination Fee is payable Parties agree that the right to receive payment of the amount determined pursuant to this Section 10.3, 9.3 in the payment of the Company Termination Fee shall be manner provided therein is the sole and exclusive remedy of Parent and Purchaser against the Party entitled to such payment in respect of the event giving rise to such payment. Other than amounts that may become payable pursuant to the Sponsor Guarantee, there shall be no liability of any shareholder, director, officer, employee, advisor or representative of Parent, Acquisition Sub or any affiliate thereof, whether to the Company and its Subsidiaries and or any other person (including any shareholder, director, officer, employee, advisor or representative thereof) in connection with any liability or other obligation of their respective formerParent, current Acquisition Sub or future stockholdersany affiliate thereof, directors, officers, Employees, Affiliates whether hereunder or Representatives otherwise in connection with the transactions contemplated hereby (including in connection with the “Company Related Parties”Equity Funding Letter). (7) for all losses and damages suffered Any obligation to make a payment as a result of Section 9.3 shall survive the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out termination of this Agreement or the transactions contemplated herebyAgreement.

Termination Fees; Expenses. (a) In the event that this Agreement is validly terminated by Parent pursuant to Section 10.1(c)(i9.1(c)(i) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii9.1(d)(ii), then, in each case, the Company shall pay to ParentParent (or one or more of its designees), by wire transfer of immediately available funds, a fee in the amount of $65,000,000 81,300,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii9.1(d)(ii) or as promptly as practicable (and, in any event, within two (2) Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i9.1(c)(i). (b) In the event that this Agreement is validly terminated by the Company or Parent pursuant to Section 10.1(b)(i9.1(b)(iii), then the Company shall pay to Parent (or one or more of its designees) by wire transfer of immediately available funds an amount equal to that required to reimburse Parent, Merger Sub and their respective Affiliates of all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including all fees and expenses of financing sources, counsel, accountants, investment banks, advisors and consultants to Parent and Merger Sub) at or prior to the time of such termination, up to $6,000,000. (c) In the event that this Agreement is validly terminated by the Company or Parent pursuant to Section 9.1(b)(i) or Section 9.1(b)(iii), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii9.1(c)(ii), and and, in each case case, (i) at any time after the date of this Agreement and prior to such termination (i) termination, a Company Acquisition Proposal has been made to the Company and publicly announced or disclosed (and such Company Acquisition Proposal has not been publicly withdrawn in a bona fide manner prior to the termination earlier of this Agreement (x) the date of the Company Meeting (including any adjournments or postponements thereof) and (y) the date of such termination) and (ii) within twelve (12) months after such termination, the Company (A) consummates a transaction with respect to a Company Acquisition Proposal or (B) enters into an a definitive agreement with respect to a Company Acquisition Proposal and a such Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposalconsummated, then, in any such event, the Company shall pay to ParentParent (or one or more of its designees), by wire transfer of immediately available funds, the Company Termination Fee concurrently with Fee, reduced by any amount previously paid under Section 9.3(b) within two (2) Business Days following the consummation of the such transaction arising from a such Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b9.3(c), references to “15%” and “85%” shall be replaced by “50%”. (cd) In the event that this Agreement is validly terminated by the Company pursuant to Section 9.1(d)(i) or Section 9.1(d)(iii), or in the event that this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b)(i) and at such time the Company could have terminated this Agreement pursuant to Section 9.1(d)(i) or Section 9.1(d)(iii) then, in each case, Parent shall pay to the Company, by wire transfer of immediately available funds, a fee in the amount of $162,600,000 (the “Reverse Termination Fee”) as promptly as practicable (and, in any event, within two (2) Business Days following such termination). (e) If the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 9.3, and, in order to obtain such payment, the other Party commences a suit that results in a judgment against such Party for any amount due pursuant to this Section 9.3, then such Party shall pay the other Party its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 9.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent (5%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law) (any such amount, the “Enforcement Expenses”); provided that in no event shall the Enforcement Expenses payable by the Company, on the one hand, or the Enforcement Expenses payable by Parent and Merger Sub, on the other hand, exceed $5,000,000 in the aggregate. The Parties acknowledge that (i) the agreements contained in this Section 10.3 9.3 are an integral part of the transactions contemplated by this Agreement, (ii) each of the Company Termination Fee, the Reverse Termination Fee and the Enforcement Expenses is not a penalty, but rather is liquidated damages, in a reasonable amount that will compensate Parent the Company or Parent, as the case may be, in the circumstances in which such 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 hereby, which amount would otherwise be impossible to calculate with precision, and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 9.3 shall be made by wire transfer of immediately available funds to an account designated in writing by ParentParent or the Company, as applicable. In no event shall a the Company Termination Fee or the Reverse Termination Fee be payable more than once. (df) Other than Notwithstanding anything in this Agreement to the case of Willful Breach by the Companycontrary, subject to Section 11.12, (i) in the event that this Agreement is terminated under circumstances where in which the Company Termination Fee is payable pursuant to this Section 10.39.3, the Parent’s right to terminate this Agreement and receive payment of the Company Termination Fee and, if applicable, the Enforcement Expenses, shall be the sole and exclusive remedy of Parent, Merger Sub, the Debt Financing Source Parties or any of their respective Affiliates and any of their respective, former, current or future stockholders, directors, officers, employees, Affiliates or Representatives (the “Parent and Purchaser Related Parties”) against the Company and Company, its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employeesemployees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwiseotherwise (including in the event of a fraud or Willful Breach), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, (ii) in the event that this Agreement is terminated under circumstances where the Reverse Termination Fee is payable pursuant to this Section 9.3, subject to Section 10.12, the payment of the Reverse Termination Fee and, if applicable, the Enforcement Expenses, shall be the sole and exclusive remedy of the Company Related Parties against any of the Parent Related Parties for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (including in the event of a fraud or Willful Breach), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, (iii) the maximum aggregate liability of Parent and Merger Sub under this Agreement in the event Parent or Merger Sub fails to consummate the transactions contemplated by this Agreement or otherwise fails to comply with or breaches any covenant or other obligation or representation or warranty in this Agreement (including in the event of a fraud or Willful Breach) shall not exceed an aggregate amount greater than the sum of (A) the amount of the Reverse Termination Fee and (B) $7,000,000 (such sum, the “Parent Liability Limit”) and (iv) in no event will the Company or any other Company Related Party seek or obtain, nor will they permit any of their Representatives to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary recovery or monetary award against any Parent Related Party with respect to this Agreement or the Equity Commitment Letter or the transactions contemplated hereby and thereby (including any breach by the Sponsor, Parent or Merger Sub), the termination of this Agreement, the failure to consummate the transactions contemplated hereby or thereby or any claims or actions under applicable Laws arising out of any such breach, termination or failure (including in the event of a fraud or Willful Breach), other than from Parent or Merger Sub pursuant to this Agreement or the Sponsor or the Equity Investor (as defined in the Equity Commitment Letter) pursuant to the Equity Commitment Letter; provided that nothing in clauses (ii) through (iv) above shall limit, abridge or otherwise modify (A) any remedies available to the Company under the Confidentiality Agreement or (B) any obligations of Parent pursuant to the last sentence of Section 7.3(f). For the avoidance of doubt, while the Company may pursue both a grant of specific performance and the payment of the Reverse Termination Fee, under no circumstances shall the Company be permitted or entitled to receive both (A) a grant of specific performance and (B) the payment of the Reverse Termination Fee, any Enforcement Expenses or any monetary damages.

Termination Fees; Expenses. (a) In the event that: (i) (A) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) and (B) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by (x) any Takeover Proposal within six (6) months of the date this Agreement is terminated or (y) any Takeover Proposal that is a Known Takeover Proposal prior to the date this Agreement is terminated within twelve (12) months of the date this Agreement is terminated; (ii) (A) a Takeover Proposal shall have been made known to the Company or shall have been made directly to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional or withdrawn) to make a Takeover Proposal (a “Known Takeover Proposal”) and thereafter, (B) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(iii), and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by (x) any Takeover Proposal within six (6) months of the date this Agreement is terminated or (y) any Takeover Proposal that is a Known Takeover Proposal prior to the date this Agreement is terminated within twelve (12) months of the date this Agreement is terminated; (iii) this Agreement is terminated by Parent pursuant to Section 10.1(c)(i7.1(c)(i) or in and the event that Company’s breach triggering such termination shall have been willful; (iv) this Agreement is terminated by Parent pursuant to Section 7.1(c)(ii); or (v) this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii7.1(d)(ii); then in any such event under clause (i), then(ii), in each case(iii), (iv) or (v) of this Section 7.3(a), the Company shall pay to Parent, by wire transfer of immediately available funds, Parent a termination fee in the amount of $65,000,000 1,174,200 in cash (the “Company Termination Fee”) at and, except for any obligation to pay expenses as set forth in the next paragraph, the Company shall have no further liability with respect to this Agreement. In addition, in the event that (x) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or (iii) (unless in connection therewith Parent is required to pay to the Company the Parent Termination Fee or if Parent fails to consummate the Merger or otherwise breaches or fails to perform any of its representations, warranties, covenants or agreements set forth in this Agreement as a result of failing to obtain the Financing primarily because of any material instituted, commenced, pending or threatened action, investigation, litigation or Proceeding by or before any Governmental Authority not being resolved on or prior to the termination of Walk-Away Date (provided that Parent was otherwise in compliance with Section 5.12(a))), (y) this Agreement in the case of a termination is terminated by Parent pursuant to Section 10.1(d)(ii7.1(c)(i), (ii), (iii) or as promptly as practicable (andvi), in any event, within two Business Days following such terminationor (z) in this Agreement is terminated by the case of a termination Company pursuant to Section 10.1(c)(i7.1(d)(ii) then, in each case under such clause (x), (y) or (z), the Company shall reimburse Parent for any and all of the Expenses of Parent and Merger Sub incurred in connection with the Transactions in an aggregate amount not to exceed $750,000. (b) In the event that this Agreement is terminated by the Company or Parent (i) pursuant to Section 10.1(b)(i7.1(b)(i) as a result of Parent’s failure to consummate the Merger (whether as a result of Parent’s failure to obtain the Financing or otherwise) on or before the Walk-Away Date (provided that Parent did not have the right to terminate this Agreement on or prior to the Walk-Away Date pursuant to Section 7.1(c)(iii)), or (ii) pursuant to Section 7.1(d)(i), in each case, Parent shall pay to the event Company a termination fee of $1,174,200 in cash (the “Parent Termination Fee”); provided that Parent shall have no obligation to pay the Parent Termination Fee if Parent fails to consummate the Merger or otherwise breaches or fails to perform any of its representations, warranties, covenants or agreements set forth in this Agreement is terminated as a result of failing to obtain the Financing primarily because of any material instituted, commenced, pending or threatened action, investigation, litigation or Proceeding by or before any Governmental Authority not being resolved on or prior to the Walk-Away Date (provided that Parent was otherwise in compliance with Section 5.12(a)). (c) Any payment required to be made pursuant to clause (i) or (ii) of Section 7.3(a) shall be made to Parent no later than concurrently with the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal; any payment required to be made pursuant to clause (iv) of Section 7.3(a) shall be made to Parent promptly following termination of this Agreement by Parent pursuant to Section 10.1(c)(ii), 7.1(c)(ii) (and in each case at any time event not later than two Business Days after delivery to the date Company of notice of demand for payment); any payment required to be made pursuant to clause (iii) of Section 7.3(a) shall be made to Parent promptly following termination of this Agreement prior by Parent pursuant to such termination Section 7.1(c)(i) (i) a Company Acquisition Proposal has been made and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); and publicly announced and has not been withdrawn prior any payment required to be made pursuant to clause (v) of Section 7.3(a) shall be made to Parent concurrently with the termination of this Agreement and pursuant Section 7.1(d)(ii); (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, thenand, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which Expenses are payable, such 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 and (iii) that, without these agreements, the Parties would payment shall be made to Parent not enter into this Agreement. Accordingly, if later than two Business Days after delivery to the Company fails of an itemization setting forth in reasonable detail all Expenses of Parent and Merger Sub (which itemization may be supplemented and updated from time to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain time by such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made party until the date 60th day after such party delivers such notice of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Lawdemand for payment). All such payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account to be designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other Any payment required to be made pursuant to Section 7.3(b) shall be made to the Company promptly following termination of this Agreement by the Company pursuant to Section 7.1(b)(i) or Section 7.1(d)(i) (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment). All such payments shall be made by wire transfer of immediately available funds to an account to be designated by the Company. (e) In the event that the Company shall fail to pay the Company Termination Fee and/or Expenses required pursuant to this Section 7.3 when due, or Parent shall fail to pay the Parent Termination Fee pursuant to this Section 7.3 when due, such fee and/or Expenses, as the case may be, shall accrue interest for the period commencing on the date such fee and/or Expenses, as the case may be, became past due, at a rate equal to the rate of interest publicly announced by Citibank, in the City of New York (or if Citibank ceases to exist, or ceases to publicly publish a Prime Lending Rate, then Chase Bank)from time to time during such period, as such bank’s Prime Lending Rate plus 6%. In addition, if the Company or Parent, as applicable, shall fail to pay such fee and/or Expenses, as the case may be, when due, the Company or Parent, as applicable, shall also pay to the other party all of Willful Breach such other party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee and/or Expenses, as the case may be. The parties acknowledges that the fee, Expenses and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, Parent and the Company would not enter into this Agreement. The parties further acknowledge and agree that (i) in the event of a breach of this Agreement by Parent or Merger Sub, the payment by Parent of the Parent Termination Fee shall constitute the sole and exclusive remedy available to the Company hereunder, and (ii) in the event of a breach of this Agreement by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where payment by the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee and/or Expenses pursuant hereto shall be constitute the sole and exclusive remedy remedies available to Parent or Merger Sub hereunder; provided, that such parties shall be entitled to the remedies set forth in Section 8.8, including injunctive relief and specific performance, as applicable, except in the case of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out termination of this Agreement or the transactions contemplated herebypursuant to Section 7.1(d)(ii).

Termination Fees; Expenses. (a) In Except as otherwise provided in this Section 8.3, whether or not the event that Merger is consummated, all Expenses incurred in connection with this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in the event that this Agreement is terminated shall be paid by the Company pursuant to Section 10.1(d)(ii), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at party incurring such cost or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i)expense. (b) In the event that that: (i) (A) an Acquisition Proposal shall have been made known to the Company, the Board of Directors, or senior management of the Company, or shall have been made directly to the stockholders of the Company or any Person shall have publicly announced an intention (not subsequently withdrawn prior to the date of such termination) to make an Acquisition Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i8.1(b)(i) (Failure to close by End Date), Section 8.1(d)(i) (Company breach of representation or warranty) or Section 8.1(d)(ii) (Company breach of covenant) and (C) within twelve (12) months of the date this Agreement is terminated the Company (1) enters into a definitive agreement to engage in a transaction that constitutes an Acquisition Proposal or (2) consummates an Acquisition Proposal (provided, that for purposes of this Section 8.3(b)(i), the references to “15%” in the event that definition of Acquisition Proposal shall be deemed to be references to “50%”); or (ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) (Company receipt of Superior Proposal); or (iii) this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii8.1(d)(iii) (Company change in recommendation); then, and in each case at any time after the date of this Agreement prior to such termination Company shall (i) pay to Parent or an Affiliate of Parent designated in writing by Parent (“Payee”) a Company Acquisition Proposal has been made to termination fee of $2,000,000 in cash (the “Termination Fee”), it being understood that in no event shall the Company and publicly announced and has not been withdrawn prior be required to pay the termination of this Agreement Termination Fee on more than one occasion and (ii) within twelve months reimburse Parent and Merger Subsidiary for all of their Expenses, up to a maximum of $1,000,000 (not later than two (2) Business Days after such terminationsubmission of statements providing reasonable evidence thereof), it being understood that in no event shall the Company (A) enters into an agreement with respect be required to a Company Acquisition Proposal reimburse Parent’s and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company Merger Subsidiary’s Expenses on more than one occasion. Such payments shall pay to Parent, be made by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references funds to “15%” shall an account to be replaced designated by “50%”Parent or Merger Subsidiary. (c) The Parties acknowledge Any payment required to be made pursuant to clause (i) of Section 8.3(b) shall be made to Payee on the date of the first to occur of the events referred to in clauses (1) and (2) of Section 8.3(b)(i)(C); any payment required to be made pursuant to clause (ii) of Section 8.3(b) shall be made to Payee prior to or concurrently with such termination; any payment required to be made pursuant to clause (iii) of Section 8.3(b) shall be made to Payee within two (2) Business Days of notice of the occurrence thereof to the Company; and, in each case, such payment shall be made by wire transfer of immediately available funds to an account to be designated by Parent. (d) In the event that the Company shall terminate this Agreement pursuant to (i) Section 8.1(c)(i) (Parent breach of representation or covenant) and the breach by Parent or Merger Subsidiary giving rise to the right of the Company to terminate this Agreement under such Section is the principal factor in the failure of the Merger to be consummated, or (ii) Section 8.1(c)(iii) (Merger Subsidiary failure to consummate the Merger), then within two (2) Business Days of notice thereof, Parent shall (i) pay to the Company a termination fee of $5,000,000 in cash (the “Parent Termination Fee”), it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion and (ii) reimburse the Company for all of its Expenses, up to a maximum of $1,000,000 (not later than two (2) Business Days after submission of statements providing reasonable evidence thereof), it being understood that in no event shall Parent be required to reimburse the Company’s Expenses on more than one occasion. Such payments shall be made by wire transfer of immediately available funds to an account to be designated by the Company. (e) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 10.3 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company damages resulting from termination of this Agreement under circumstances where a Termination Fee or a Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 8.3(b) and Section 8.3(d) are not a penalty, but rather is are a reasonable amount that will compensate Parent in and Merger Subsidiary, with respect to Section 8.3(b), and the circumstances in which such fee is payable Company, with respect to Section 8.3(d), 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 hereby, which amount would otherwise be impossible to calculate with precision, and (iii) that, without these agreementsthe agreements contained in this Section 8.3, the Parties would not enter have entered into this Agreement. Accordingly, if the Company fails to timely promptly pay any amount due pursuant to this Section 10.3, 8.3(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amount set forth in Section 8.3(b) or any amount due pursuant to this Section 10.3portion thereof, then the Company shall pay to Parent the Expenses incurred by the prevailing Party and its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) Affiliates in connection with such suit, together with interest on the amount due pursuant of such amount or portion thereof at a rate equal to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published reported in The Wall Street Journal in effect on the date such payment was required to be made (through the date of payment. Likewise, if Parent fails to promptly pay any amount due pursuant to Section 8.3(d) and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for the amount set forth in Section 8.3(d) or any portion thereof, Parent shall pay to the Company the Expenses incurred by the Company in connection with such lesser suit, together with interest on the amount of such amount or portion thereof at a rate as is equal to the maximum permitted by applicable Law). All payments under this Section 10.3 shall prime rate reported in The Wall Street Journal on the date such payment was required to be made by wire transfer through the date of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than oncepayment. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In Except as otherwise provided in this Section 8.3, whether or not the event that Merger is consummated, all Expenses incurred in connection with this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in the event that this Agreement is terminated shall be paid by the Company pursuant to Section 10.1(d)(ii), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) at party incurring such cost or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i)expense. (b) In the event that that: (i) (A) a bona fide Acquisition Proposal shall have been made known to the Company, the Board, or senior management of the Company, or shall have been made directly to the stockholders of the Company or any Person shall have publicly announced a bona fide intention (not subsequently withdrawn) to make an Acquisition Proposal and (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i8.1(b)(i) (Failure to close by End Date), Section 8.1(d)(i) (Company breach of representation or warranty) or Section 8.1(d)(ii) (Company breach of covenant) and (C) the Company consummates an Acquisition Proposal, within twelve (12) months of the date this Agreement is terminated (provided that for purposes of this Section 8.3(b)(i), the references to “15%” in the event that definition of Acquisition Proposal shall be deemed to be references to “50%”); or (ii) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii) (Company receipt of Superior Proposal); or (iii) this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii8.1(d)(iii) (Company change in recommendation), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, ; then, in any such event, the Company shall pay to ParentParent or an Affiliate of Parent designated in writing by Parent (“Payee”) a termination fee of $12,751,000 in cash (the “Termination Fee”), it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion. (c) Any payment required to be made pursuant to clause (i) of Section 8.3(b) shall be made to Payee on the date an Acquisition Proposal is consummated; any payment required to be made pursuant to clause (ii) or (iii) of Section 8.3(b) shall be made to Payee within two (2) Business Days of notice of the occurrence thereof to the Company; and in each case such payment shall be made by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references funds to “15%” shall an account to be replaced designated by “50%”Parent. (cd) The Parties acknowledge In the event that the Company shall terminate this Agreement pursuant to Section 8.1(c)(i) (Parent breach of representation or covenant), or Section 8.1(c)(iii)(B) (Merger Subsidiary failure to accept Shares), then, within two (2) Business Days of notice thereof, Parent shall pay to the Company a termination fee of $20,037,000 in cash (the “Parent Termination Fee”), it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Such payments shall be made by wire transfer of immediately available funds to an account to be designated by the Company. (e) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 10.3 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company damages resulting from termination of this Agreement under circumstances where a Termination Fee or a Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 8.3(b) and Section 8.3(d) are not a penalty, but rather is are a reasonable amount that will compensate Parent in and Merger Subsidiary, with respect to Section 8.3(b), and the circumstances in which such fee is payable Company, with respect to Section 8.3(d), 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 hereby, which amount would otherwise be impossible to calculate with precision, and (iii) that, without these agreementsthe agreements contained in this Section 8.3, the Parties parties would not enter have entered into this Agreement. Accordingly, if the Company fails to timely promptly pay any amount due pursuant to this Section 10.3, 8.3(b) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amount set forth in Section 8.3(b) or any amount due pursuant to this Section 10.3portion thereof, then the Company shall pay to Parent the Expenses incurred by the prevailing party and its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) Affiliates in connection with such suit, together with interest on the amount due pursuant of such amount or portion thereof at a rate equal to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published reported in The Wall Street Journal in effect on the date such payment was required to be made (through the date of payment. Likewise, if Parent fails to promptly pay any amount due pursuant to Section 8.3(d) and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for the amount set forth in Section 8.3(d) or any portion thereof, Parent shall pay to the Company the Expenses incurred by the Company in connection with such lesser suit, together with interest on the amount of such amount or portion thereof at a rate as is equal to the maximum permitted by applicable Law). All payments under this Section 10.3 shall prime rate reported in The Wall Street Journal on the date such payment was required to be made by wire transfer through the date of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than oncepayment. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) 10.01(c)(i), or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii10.01(d)(ii), then, in each case, then the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent a fee in the amount of $65,000,000 3,661,461 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii10.01(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i10.01(c)(i). (ba) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii10.01(b)(i), and in each case (I) at any time after the date of this Agreement and prior to such termination (i) the final Expiration Date, a Company Acquisition Proposal has shall have been made to the Company and publicly announced or publicly made known and has shall not have been withdrawn prior to the termination of this Agreement and (iiII) within twelve months after such termination, the Company (A) enters shall have entered into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a any Company Acquisition Proposal, thenor any Company Acquisition Proposal shall have been consummated, in any such event, then the Company shall pay to Parentpay, by wire transfer of immediately available funds, to Parent the Company Termination Fee concurrently on the earlier to occur of the Company entering into an agreement with respect to such Company Acquisition Proposal or the consummation of the transaction arising from a such Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b10.03(b), references to “1520%” shall be replaced by “50%.” (b) In the event that this Agreement is terminated by Parent pursuant to Section 10.01(c)(ii) as a result of a Willful Breach by the Company of this Agreement under circumstances in which the Company Termination Fee is not then payable pursuant to this Section 10.03, then the Company shall, following receipt of an invoice therefor, promptly (in any event within three Business Days) pay all of Parent’s reasonable and documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement, which expenses shall in no event exceed $1,220,487 in the aggregate, by wire transfer of immediately available funds to one or more accounts designated by Parent; provided that the existence of circumstances which could require the Company Termination Fee to become subsequently payable by the Company pursuant to this Section 10.03 shall not relieve the Company of its obligations to pay Parent’s expenses pursuant to this Section 10.03(c); provided that the payment by the Company of Parent’s expenses pursuant to this Section 10.03(c) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee pursuant to this Section 10.03, but shall reduce, on a dollar for dollar basis, any Company Termination Fee that becomes due and payable under this Section 10.03. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 10.03 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly; accordingly, if either the Company fails promptly to timely pay any amount due pursuant to this Section 10.310.03, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.310.03, then the Company non-prevailing Party that is required to pay any such fee or expenses shall pay Parent the prevailing Party entitled to receive such fee or expenses its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 10.03 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law)made. All payments under this Section 10.3 10.03 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other Each Party agrees that notwithstanding anything in this Agreement to the contrary (other than with respect to claims for, or arising out of or in the case of Willful Breach by the Company, subject to Section 11.12, connection with fraud) (A) in the event that this Agreement is terminated under circumstances where the Company Termination Fee is or Parent’s expenses would be payable pursuant to this Section 10.310.03, the payment of the Company Termination Fee and/or Parent’s expenses, as applicable, shall be the sole and exclusive remedy of Parent Parent, its Subsidiaries, stockholders, Affiliates, officers, directors, employees and Purchaser Representatives against the Company and its Subsidiaries and or any of their respective formerits Representatives or Affiliates for, current (B) in no event will Parent seek to recover any other money damages or future stockholdersseek any other remedy (including any remedy for specific performance, directorsexcept solely in compliance with Section 11.12 hereof) based on a claim in law or equity with respect to, officers(1) any loss suffered, Employeesdirectly or indirectly, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by Offer or the Merger to be consummated, (2) the termination of this Agreement, (3) any liabilities or obligations arising under this Agreement or (4) any claims or actions arising out of or relating to be consummated or for a breach any breach, termination or failure to perform hereunder of or otherwiseunder this Agreement, and (C) upon payment of such amountany Company Termination Fee and/or Parent’s expenses in accordance with this Section 10.03, none no Party nor any Affiliates or Representatives of the Company Related Parties any Party shall have any further liability or obligation to another Party relating to or arising out of this Agreement or the transactions contemplated hereby.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in the event that this Agreement is terminated by the The Company pursuant to Section 10.1(d)(ii), then, in each case, the Company shall will pay to Parent, by wire transfer of immediately available funds, a fee in an amount equal to the amount sum of $65,000,000 150,000 plus any and all of the fees, costs, and expenses incurred or to be incurred by Parent in connection with the Tender Offer or the Merger (collectively, the “Parent Transaction Costs”), including, without limitation, any and all financial advisory fees, banking fees, accounting fees, legal fees, proxy costs, and similar fees, costs, and expenses (provided, however, that the Company shall not be obligated to pay the Parent Transaction Costs to Parent in any amount in excess of $50,000 pursuant to this Section 8.05) (the “Company Termination Fee”) at or prior to the termination of if this Agreement in the case of a termination is terminated as follows: (i) if Parent terminates this Agreement pursuant to Section 10.1(d)(ii8.01(e)(i) or as promptly as practicable (andiii), in any event, within two Business Days then the Company will pay the Termination Fee on the business day following such termination; (ii) in if the case of a termination Company terminates this Agreement pursuant to Section 10.1(c)(i8.01(f), then the Company will pay the Termination Fee prior to or simultaneously with such termination; and (iii) if (A) the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii) at which time a publicly announced proposal to implement an Alternative Transaction remains outstanding and the Minimum Condition has not been satisfied and (B) the Company enters into an agreement providing for an Alternative Transaction within six months after such termination, then the Company will pay the Termination Fee at the time of execution of such agreement. (b) In the event The Company acknowledges that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 8.05 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties Parent would not enter into this Agreement. Accordingly, if the Company fails promptly to timely pay any amount the amounts due pursuant to this Section 10.38.05, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant will also pay to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the such amount due pursuant to this Section 10.3 from the date such this payment was required to be made due until the date it was made equal to the lesser of payment at (i) 8.5% per annum, compounded monthly, or (ii) the annual maximum rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect permitted by applicable law, on the date such payment was required to be made (or such lesser rate as made. It is specifically agreed that the maximum permitted by applicable Law). All payments under this Section 10.3 shall amount to be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable paid pursuant to this Section 10.38.05 represents an alternate agreement and is not a penalty. (c) Whether or not the Merger is consummated, the payment of the Company Termination Fee shall be the sole all costs and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by expenses incurred in connection with this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, in accordance with its terms and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the party incurring such costs and expenses.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in the event that this Agreement is terminated by the The Company pursuant to Section 10.1(d)(ii), then, in each case, the Company shall will pay to Parent, by wire transfer of immediately available funds, a fee in an amount equal to the amount sum of $65,000,000 150,000 plus any and all of the fees, costs, and expenses incurred or to be incurred by Parent in connection with the Tender Offer or the Merger (collectively, the "Parent Transaction Costs"), including, without limitation, any and all financial advisory fees, banking fees, accounting fees, legal fees, proxy costs, and similar fees, costs, and expenses (provided, however, that the Company shall not be obligated to pay the Parent Transaction Costs to Parent in any amount in excess of $50,000 pursuant to this Section 8.05) (the “Company "Termination Fee”") at or prior to the termination of if this Agreement in the case of a termination is terminated as follows: (i) if Parent terminates this Agreement pursuant to Section 10.1(d)(ii8.01(e)(i) or as promptly as practicable (andiii), in any event, within two Business Days then the Company will pay the Termination Fee on the business day following such termination; (ii) in if the case of a termination Company terminates this Agreement pursuant to Section 10.1(c)(i8.01(f), then the Company will pay the Termination Fee prior to or simultaneously with such termination; and (iii) if (A) the Company or Parent terminates this Agreement pursuant to Section 8.01(b)(iii) at which time a publicly announced proposal to implement an Alternative Transaction remains outstanding and the Minimum Condition has not been satisfied and (B) the Company enters into an agreement providing for an Alternative Transaction within six months after such termination, then the Company will pay the Termination Fee at the time of execution of such agreement. (b) In the event The Company acknowledges that this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 8.05 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties Parent would not enter into this Agreement. Accordingly, if the Company fails promptly to timely pay any amount the amounts due pursuant to this Section 10.38.05, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant will also pay to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the such amount due pursuant to this Section 10.3 from the date such this payment was required to be made due until the date it was made equal to the lesser of payment at (i) 8.5% per annum, compounded monthly, or (ii) the annual maximum rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect permitted by applicable law, on the date such payment was required to be made (or such lesser rate as made. It is specifically agreed that the maximum permitted by applicable Law). All payments under this Section 10.3 shall amount to be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable paid pursuant to this Section 10.38.05 represents an alternate agreement and is not a penalty. (c) Whether or not the Merger is consummated, the payment of the Company Termination Fee shall be the sole all costs and exclusive remedy of Parent and Purchaser against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by expenses incurred in connection with this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, in accordance with its terms and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the party incurring such costs and expenses.

Termination Fees; Expenses. Except as otherwise provided in this Section 9.1, all costs and expenses incurred in the consummation of this transaction, including any brokers’ or finders’ fees, shall be paid by the Party incurring such cost or expense. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i) or in Wintrust because the event that Company committed a material breach of its material obligations under this Agreement (except in circumstances governed by Section 9.1(b) below), unless such breach is terminated a result of the failure by Wintrust to perform and comply in all material respects with any of its material obligations under this Agreement which are to be performed or complied with by it prior to or on the Company pursuant to Section 10.1(d)(ii)date of such termination, then, provided Wintrust is in each casematerial compliance with all of its material obligations under this Agreement, the Company shall pay to Parent, by wire transfer of immediately available funds, Wintrust a termination fee in the amount of $65,000,000 900,000 plus documented out-of-pocket expenses and costs (the “Company Termination Fee”up to a maximum of an additional $325,000 in such expenses and costs), including reasonable attorneys’ fees, subject to verification thereof, that Wintrust (i) at or prior to the termination has incurred in furtherance of this Agreement and the transactions contemplated herein and (ii) is reasonably expected to incur as a result of the Company’s breach of this Agreement, including, but not limited to, reasonable fees of professionals engaged for such purpose by or on behalf of Wintrust. Except as provided in the following sentence and in Section 9.1(c), such sums shall constitute liquidated damages and the receipt thereof shall be Wintrust’s sole and exclusive remedy under this Agreement. Notwithstanding anything to the contrary in this Agreement, if this Agreement is terminated by Wintrust as a result of the Company’s willful breach of this Agreement, then in addition to recovery of its out-of-pocket expenses and costs, Wintrust shall be entitled to recover such other amounts, including consequential damages, as it may be entitled to receive at law or in equity. (b) In the event that: (i) Wintrust terminates this Agreement pursuant to Section 9.2(c)(i) by virtue of a breach of the covenant contained in Section 4.8 or pursuant to Section 9.2(j); (ii) any Person makes a Company Takeover Proposal that shall have been made known to the public or the Company Board or shall have been made directly to the stockholders of the Company, or any Person shall have publicly announced (and not publicly withdrawn) a bona fide intention to make a Company Takeover Proposal, and in the case of any of the foregoing in this clause (ii), this Agreement is thereafter terminated pursuant to Section 9.2(b), 9.2(c) or 9.2(e) and within fifteen months after the date of such termination the Company or a Company Subsidiary has either consummated or entered into a definitive agreement relating to a Company Takeover Proposal or the Company Board or any committee thereof shall have approved, adopted or recommended in favor of any Company Takeover Proposal; provided that in the case of termination pursuant to Section 10.1(d)(ii9.2(b) or as promptly as practicable 9.2(c), the below-mentioned fee shall be payable pursuant to this clause (and, in any event, within ii) only if the Company Stockholder Approval shall not have been obtained at least two Business Days following business days before such termination; or (iii) in the case of a termination Company terminates this Agreement pursuant to Section 10.1(c)(i9.2(f), then the Company shall pay to Wintrust a termination fee equal to $1,750,000. In addition, in such circumstances or in other circumstances in which this Agreement is terminated pursuant to Section 9.2(e), the Company shall pay to Wintrust its documented out-of-pocket expenses and costs (up to a maximum of an additional $325,000 in such costs and expenses) including reasonable attorneys’ fees, subject to verification thereof, that Wintrust (i) has incurred in furtherance of this Agreement and the transactions contemplated herein and (ii) is reasonably expected to incur, including reasonable fees of professionals engaged for such purpose by or on behalf of Wintrust. Except as provided in the last sentence of Section 9.1(a) such sums shall constitute liquidated damages and the receipt thereof shall be Wintrust’s sole and exclusive remedy under this Agreement; provided that in no event shall Wintrust be entitled to a termination fee under both Sections 9.1(a)and 9.1(b) and including reasonable attorneys’ fees. (bc) In the event that this Agreement is terminated by the Company because Wintrust committed a material breach of its material obligations under this Agreement, unless such breach is a result of the failure by the Company or Parent pursuant the Bank to Section 10.1(b)(i), or perform and comply in the event that all material respects with any of its material obligations under this Agreement is terminated which are to be performed or complied with by Parent pursuant it prior to Section 10.1(c)(ii), and in each case at any time after or on the date of such termination, then, provided the Company is in material compliance with all of its material obligations under this Agreement prior Agreement, Wintrust shall pay the Company a termination fee of $900,000, plus documented out-of-pocket expenses and costs (up to a maximum of an additional $325,000 in such termination expenses and costs), including reasonable attorneys’ fees, subject to verification thereof, that the Company (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination incurred in furtherance of this Agreement and the transactions contemplated herein and (ii) within twelve months after is reasonably expected to incur as a result of Wintrust’s breach of this Agreement, including, but not limited to, reasonable fees of professionals engaged for such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated purpose by or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation on behalf of the transaction arising from a Company Acquisition ProposalCompany; provided, however, that for purposes of such sums shall constitute liquidated damages and the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” receipt thereof shall be replaced the Company’s sole and exclusive remedy under this Agreement. Notwithstanding the foregoing, if this Agreement is terminated by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part Company as a result of the transactions contemplated by Wintrust’s willful breach of this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent then in the circumstances in which such 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 addition to recovery of the consummation of the transactions contemplated hereby and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs expenses and expenses (including reasonable attorneys’ fees and expenses) in connection with such suitcosts, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 Company shall be made by wire transfer of immediately available funds entitled to an account designated recover such other amounts, including consequential damages, as it may be entitled to receive at law or in writing by Parent. In no event shall a Company Termination Fee be payable more than onceequity. (d) Other than Any fee or expense payment due under this Section 9.1 shall be paid by wire transfer to the applicable account specified in Schedule 9.1(d) of same-day funds on the date of termination of this Agreement, except that (i) in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is a fee payable pursuant to this Section 10.39.1(b)(ii), the such payment of the Company Termination Fee shall be made on the sole and exclusive remedy date of Parent and Purchaser against the Company and its Subsidiaries and any execution of their respective formersuch definitive agreement, current or future stockholderssuch approval or recommendation, directorsor, officersif earlier, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result consummation of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwisesuch transactions, and upon (ii) in the case of a fee payable pursuant to Section 9.1(b)(iii), such payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating be made prior to or arising out of this Agreement or the transactions contemplated herebyconcurrently with such termination.

Termination Fees; Expenses. (a) In the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(i9.1(c)(i) or in the event that this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii9.1(d)(ii), then, in each case, the Company shall pay to Parent, by wire transfer of immediately available funds, a fee in the amount of $65,000,000 (the “Company Termination Fee”) Fee at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii9.1(d)(ii) or as promptly as practicable (practicable, and, in any event, within two Business Days following following, such termination) termination in the case of a termination pursuant to Section 10.1(c)(i9.1(c)(i). (b) In the event that (i) this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i9.1(b)(i) or Section 9.1(b)(iii), or in the event that this Agreement is terminated by Parent pursuant to Section 10.1(c)(ii), and in each case at any time after the date of this Agreement (ii) prior to such termination (i) termination, a Company Acquisition Proposal has been made to the Company Board or the Company and has been publicly announced and has not been withdrawn prior to the termination of this Agreement and (iiiii) within twelve 12 months after such termination, the Company (A) enters into an a definitive agreement with respect to a Company Acquisition Proposal and or consummates a Company Acquisition Proposal is subsequently consummated (whether or (B) consummates a not the same Company Acquisition ProposalProposal as that referred to in clause (ii) above), then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently (less any Expense Reimbursement previously paid to Parent by the Company in accordance with Section 9.3(c)), within two Business Days following the consummation earliest to occur of the transaction arising from a Company Acquisition Proposalevents described in clause (iii) of this Section 9.3(b); provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b9.3(b), references to “1520%” shall be replaced by “50%”. (c) In the event that this Agreement is terminated pursuant to Section 9.1(b)(iii) and, at such time, the Company Termination Fee is not otherwise payable as a result of such termination, then the Company shall pay to Parent an amount equal to the reasonable and documented out-of-pocket expenses incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated hereby, including the Debt Financing (including fees and expenses of counsel, accountants, investment bankers, other advisors and financing sources), up to $10 million (the amount paid pursuant to this Section 9.3(c), the “Expense Reimbursement”), within two Business Days following the date of Parent’s delivery of an invoice therefor, by wire transfer in immediately available funds to the account(s) designated in writing by Parent to the Company; provided that the existence of circumstances which could require the Company Termination Fee (less any Expenses Reimbursement previously paid to Parent by the Company) to become subsequently payable by the Company shall not relieve the Company of its obligations to pay the Expense Reimbursement pursuant to this Section 9.3(c); provided, further, that the payment by the Company of the Expense Reimbursement pursuant to this Section 9.3(c) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee (less any Expenses Reimbursement previously paid to Parent by the Company). (d) In the event that this Agreement is terminated (i) by the Company or Parent pursuant to (A) Section 9.1(b)(i) and at such time, (x) the only conditions set forth in Section 8.1 and Section 8.2 that shall not have been satisfied or waived as of such time (other than those conditions that by their terms are to be satisfied at the Closing and are capable of being satisfied) are (1) the condition set forth in Section 8.1(b), or Section 8.1(c), (2) those conditions that shall not have been satisfied as a result of (I) any failure to obtain any clearance, approval or consent from any Governmental Authority of the PRC, in each case that is necessary for the consummation of the transactions contemplated by this Agreement or (II) any Law or Order (whether temporary, preliminary or permanent) of any Governmental Authority of the PRC prohibiting or making illegal the consummation of the Merger or (y) the Company could have terminated this Agreement pursuant to Section 9.1(d)(iii) or (B) Section 9.1(b)(ii) (with respect to (x) any Law or Order of any Governmental Authority of the PRC or (y) any Law or Order arising under any Competition Law), or (ii) by the Company pursuant to Section 9.1(d)(iii), then, in each such case, Parent and the Company shall instruct the Escrow Agent, pursuant to and in accordance with the terms of the Escrow Agreement, to (x) pay to the Company, or Parent shall otherwise pay to the Company, by wire transfer of immediately available funds, a fee in the amount of $171,100,000 (the “Parent Termination Fee”) as promptly as practicable (and, in any event, within two Business Days) following such termination and (y) return to Parent the remainder of the Escrow Amount (including any interest or income earned thereon) less any amount of monetary damages that the Company is seeking, and is permitted under this Agreement to seek, due to a Willful Breach of this Agreement by Parent. (e) The Parties acknowledge that (i) the agreements contained in this Section 10.3 9.3 are an integral part of the transactions contemplated by this Agreement, and (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter have entered into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant to this Section 10.39.3, including by failing to deliver joint written instructions to the Escrow Agent in accordance with the Escrow Agreement providing for the release of the Escrow Amount in accordance with the terms of this Agreement and the Escrow Agreement, and, in order to obtain such payment, Parent the other Party commences a suit that results in a judgment against the Company defaulting Party for any the amount due pursuant to this Section 10.39.3, or any portion of such amount, then the Company such defaulting Party shall pay Parent the other Party its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 9.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent 5% plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 9.3 shall be made by wire transfer of immediately available funds to an account the account(s) designated in writing by ParentParent or the Company, as applicable. In no event shall a Company Termination Fee or Parent Termination Fee be payable more than once. (df) Other Notwithstanding anything in this Agreement to the contrary, subject to Section 10.13 and other than in the case of Willful Breach (it being agreed that, if Parent and Merger Sub are not otherwise in material breach of any of their representations, warranties, covenants or agreements contained in this Agreement, any failure by Parent and Merger Sub to consummate the Company, subject Closing that results from a Financing Failure shall not in and of itself be deemed to Section 11.12, be a Willful Breach by Parent or Merger Sub): (i) in the event that this Agreement is terminated under circumstances where in which the Company Termination Fee is payable pursuant to this Section 10.39.3, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent, Merger Sub, the Debt Financing Parties and any of their respective former, current or future stockholders, directors, officers, employees, Affiliates and Representatives (the “Parent and Purchaser Related Parties”) against the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, (X) none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or any of the transactions contemplated hereby (whether at Law or in equity and whether based on contract, tort or otherwise), (Y) none of the Parent Related Parties shall seek to recover any other damages or seek any other remedy, whether based on a claim at Law or in equity, in Contract, tort or otherwise, with respect to any losses or damages suffered in connection with this Agreement or the transactions contemplated hereby, and (Z) Parent shall cause any claim which is brought by any Parent Related Party against any Company Related Party and which is inconsistent with the limitations set forth in this Section 9.3(f)(i) to be dismissed promptly and in any event with five Business Days after it is first initiated; and (ii) in the event that this Agreement is terminated under circumstances in which the Parent Termination Fee is payable pursuant to this Section 9.3, the payment of the Parent Termination Fee shall be the sole and exclusive remedy of the Company, its Subsidiaries and the Other Company Related Parties against Parent, Merger Sub, the other Parent Related Parties and the Debt Financing Source Parties for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, (X) none of the Parent Related Parties nor the Debt Financing Source Parties shall have any further liability or obligation relating to or arising out of this Agreement or any of the transactions contemplated hereby (including the Debt Financing) or thereby (whether at Law or in equity and whether based on contract, tort or otherwise), (Y) none of the Company, its Subsidiaries or any other Company Related Party shall seek to recover any other damages or seek any other remedy, whether based on a claim at Law or in equity, in Contract, tort or otherwise, with respect to any losses or damages suffered in connection with this Agreement or the transactions contemplated hereby (including the Debt Financing), and (Z) the Company shall cause any claim which is brought by any Company Related Party against any Parent Related Party or Debt Financing Source Party and which is inconsistent with the limitations set forth in this Section 9.3(f)(ii) to be dismissed promptly and in any event with five Business Days after it is first initiated. (iii) For the avoidance of doubt, while each of the Company and Parent may pursue both a grant of specific performance and the payment of the Parent Termination Fee or the Company Termination Fee under this Section 9.3, as applicable, under no circumstances shall the Company or Parent be permitted or entitled to receive both (x) a grant of specific performance to cause Parent to make the payment of the Merger Consideration and the other Merger Amounts and to cause the Effective Time to occur and to consummate the Closing and (y) the payment of the Parent Termination Fee or the Company Termination Fee, as applicable.

Termination Fees; Expenses. (a) In the event that If this Agreement is terminated by Parent pursuant to Section 10.1(c)(i9.01(g)(i) or (ii), then the Company shall promptly (but not later than five business days after receiving notice of termination) pay to Parent in cash an amount equal to all documented out-of-pocket expenses and fees incurred by Parent (including, without limitation, fees and expenses payable to all legal, accounting, financial, and other professionals arising out of, in connection with or related to the event that transactions contemplated by this Agreement) not in excess of $5 million. If this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii9.01(f), thenthen Parent shall promptly (but not later than five business days after receiving notice of termination) pay to the Company in cash an amount equal to all documented out-of-pocket expenses and fees incurred by the Company (including, without limitation, fees and expenses payable to all legal, accounting, financial, and other professionals arising out of, in each case, connection with or related to the Company shall pay to Parent, transactions contemplated by wire transfer of immediately available funds, a fee this Agreement) not in the amount excess of $65,000,000 (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination pursuant to Section 10.1(c)(i)5 million. (b) In the event that (i) this Agreement is terminated by the Company or Parent pursuant to Section 10.1(b)(i), 9.01(e) or in the event (ii) any person or group shall have made an Alternative Proposal that has not been withdrawn and this Agreement is terminated by (A) Parent or the Company pursuant to Section 9.01(c) because the Company Shareholders' Approval is not obtained, (B) Parent pursuant to Section 10.1(c)(ii9.01(g)(iii), and or (C) by the Company pursuant to Section 9.01(b), then the Company shall promptly (but in each case at any time after no event later than the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect pay or cause to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay be paid to Parent, by wire transfer of immediately available same day funds, the Company Termination Fee concurrently a termination fee of $16.5 million plus an amount equal to all documented out-of-pocket expenses and fees incurred by Parent arising out of, or in connection with the consummation of the transaction arising from a Company Acquisition Proposal; providedor related to, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in excess of $5 million in the circumstances in which such 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 and (iii) thataggregate; provided, without these agreementshowever, the Parties would not enter into this Agreement. Accordingly, that if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where pursuant to the provisions of clause (ii) above, then no payment of a termination fee or expenses by the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee Parent shall be required unless and until a definitive agreement with respect to the sole applicable Alternative Proposal is executed within one year after such termination and, in such event, a termination fee and exclusive remedy of Parent and Purchaser against expenses shall be payable within one business day after the Company and its Subsidiaries and any of their respective former, current or future stockholders, directors, officers, Employees, Affiliates or Representatives (the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment execution of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated herebydefinitive agreement.

Termination Fees; Expenses. (a) In the event that: (i) (A) a Third Party shall have made to the Company or directly to the Company’s stockholders a Competing Proposal after the date of this Agreement, (B) this Agreement is subsequently terminated (x) by either party pursuant to Section 8.1(b)(i) (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or Parent has the right to terminate pursuant to Section 8.1(d)(i) (Company Breach)), (y) by either party pursuant to Section 8.1(b)(iii) (Company Stockholder Approval) or (z) by Parent pursuant to Section 8.1(d)(i) (Company Breach) or Section 8.1(d)(iii) (Breach of Non-Solicitation Covenants) and at the time of such termination in the case of clauses (x) and (y) (or at the time of such breach in the cause of clause (z)) a Competing Proposal has been publicly announced (or privately made to the Company in the case of clauses (x) and (z)) after the date of this Agreement and has not been withdrawn, and (C) within twelve (12) months of such termination of this Agreement, the Company consummates a transaction involving any Competing Proposal or enters into an Alternative Acquisition Agreement regarding any Competing Proposal and any Competing Proposal is subsequently consummated; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”; (ii) this Agreement is terminated by Parent pursuant to Section 10.1(c)(i8.1(d)(ii) (Adverse Recommendation Change); (iii) (A) the Company Board shall have made an Adverse Recommendation Change and (B) this Agreement is terminated by either party pursuant to Section 8.1(b)(i) (Outside Date) (at a time when the Company Stockholder Approval has not been obtained or Parent has the right to terminate pursuant to Section 8.1(d)(i) (Company Breach) or in the event that Section 8.1(b)(iii) (Company Stockholder Approval), or by Parent pursuant to Section 8.1(d)(i) (Company Breach)); (iv) this Agreement is terminated by the Company pursuant to Section 10.1(d)(ii8.1(c)(ii) (Superior Proposal), then, in each case, ; or (v) this Agreement is terminated by Parent pursuant to Section 8.1(d)(iii) (Breach of Non-Solicitation Covenants); then the Company shall pay pay, or cause to Parentbe paid, by wire transfer of immediately available funds, a fee in to or at the amount direction of $65,000,000 Parent, (the “Company Termination Fee”) at or prior to the termination of this Agreement in the case of a termination pursuant to Section 10.1(d)(ii) or as promptly as practicable (and, in any event, within two Business Days following such terminationx) in the case of a termination clauses (i), (ii), (iii) and (iv) above, one hundred percent (100%) of the Termination Fee (reduced by the portion of the Termination Fee previously paid pursuant to Section 10.1(c)(ithe immediately succeeding clause (y), if any) and (y) in the case of clauses (v) above, an amount equal to Parent’s Expenses (provided that such amount shall not exceed $15 million) (it being understood that in no event shall the Company be required to pay more than 100 percent (100%) of the Termination Fee), (A) in the case of clause (i) above, on the date of the consummation of such transaction involving a Competing Proposal, (B) in the case of clauses (ii) or (v), or if Parent is the terminating party in the case of clause (iii), no later than two (2) Business Days after the date of such termination and (C) in the case of clause (iv), or if the Company is the terminating party in the case of clause (iii), prior to or substantially concurrently with such termination. (b) In Notwithstanding anything to the event that contrary set forth in this Agreement is terminated by Agreement, but subject to Section 9.9, Parent’s receipt in full of the Company or Parent Termination Fee pursuant to Section 10.1(b)(i)8.3, or in circumstances where the event that this Agreement Termination Fee is terminated by Parent owed pursuant to Section 10.1(c)(ii)8.3, and in each case at any time after the date of this Agreement prior to such termination (i) a Company Acquisition Proposal has been made to the Company and publicly announced and has not been withdrawn prior to the termination of this Agreement and (ii) within twelve months after such termination, the Company (A) enters into an agreement with respect to a Company Acquisition Proposal and a Company Acquisition Proposal is subsequently consummated or (B) consummates a Company Acquisition Proposal, then, in any such event, the Company shall pay to Parent, by wire transfer of immediately available funds, the Company Termination Fee concurrently with the consummation of the transaction arising from a Company Acquisition Proposal; provided, however, that for purposes of the definition of “Company Acquisition Proposal” in this Section 10.3(b), references to “15%” shall be replaced by “50%”. (c) The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Company Termination Fee is not a penalty, but rather is a reasonable amount that will compensate Parent in the circumstances in which such 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 10.3, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for any amount due pursuant to this Section 10.3, then the Company shall pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the annual rate of five percent plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). All payments under this Section 10.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall a Company Termination Fee be payable more than once. (d) Other than in the case of Willful Breach by the Company, subject to Section 11.12, in the event that this Agreement is terminated under circumstances where the Company Termination Fee is payable pursuant to this Section 10.3, the payment of the Company Termination Fee shall be constitute the sole and exclusive monetary remedy of Parent and Purchaser Acquisition Sub against the Company and its Subsidiaries and any of their respective direct or indirect, former, current or future general or limited partners, stockholders, members, managers, directors, officers, Employeesemployees, agents, Affiliates or Representatives assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to Section 8.3(c) and Section 8.6, as applicable). (c) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such 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, the parties hereto would not enter into this Agreement. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 8.3 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 8.3, the Company shall pay Parent its costs and expenses in connection with such suit, together with interest on such amount at the annual rate of two percent (2%) plus 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.