Common use of Company Termination Fee Clause in Contracts

Company Termination Fee. (i) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (ia) If this Agreement is terminated (i) by Parent pursuant to Section 8.4(a) (Company Change in Recommendation) or (ii) by the Company pursuant to Section 8.01(d8.3(c) or by Parent pursuant to Section 8.01(e(Termination for Superior Proposal), then the Company shall shall, within three two (32) Business Days after such termination in the date case of clause (i) or concurrently with such terminationtermination in the case of clause (ii), pay Parent, as liquidated damages and not as Parent a penalty and as fee equal to $356,000,000 (the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the “Company Termination Fee Fee”) less any amount of Parent Expenses previously paid by wire transfer of immediately available fundsthe Company. (iib) If (i) this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c8.2(a) (Termination Date) or by Parent pursuant 8.2(b) (Shareholder Vote), (ii) prior to Section 8.01(gsuch termination referred to in clause (i) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time sentence, but after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectivelyof this Agreement, a Takeover Company Acquisition Proposal shall have been publicly announced or publicly made known to the Company Special Committee or any of its Subsidiaries or shall have been made directly to the Company’s shareholders of the Company (whether or not conditional) (or any Person shall have publicly announced an intention (a bona fide written intention, whether or not conditional) , to make a Takeover Proposal and such Takeover Proposal or such intent has Company Acquisition Proposal) and, in each case, not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelywithdrawn, and (Biii) within twelve (12) months after such terminationthe date of a termination in either of the cases referred to in clause (i) of this Section 8.5(b), the Company either consummates such Takeover a Company Acquisition Proposal or enters into an agreement contemplating a definitive agreement to consummate such Takeover Proposal and Company Acquisition Proposal, then the Company thereafter consummates shall pay the Company Termination Fee, less any amount of Parent Expenses previously paid by the Company, concurrently with the earlier of such Takeover Proposal entry or consummation; provided that solely for purposes of this Section 8.5(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), except that the references to “twenty (whether 20%) or not within such twelve more” shall be deemed to be references to “fifty percent (1250%) month periodor more”. In no event shall the Company be required to pay the Company Termination Fee or the Parent Expenses on more than one occasion. (c) If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(b), then the Company shall upon the consummation of such Takeover Proposal, pay to Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. , a fee equal to $25,000,000 (iiithe “Parent Expenses”) Notwithstanding anything to the contrary contained as promptly as practicable (and, in this Agreementany event, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to within two Business Days following such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (i) If this Agreement is terminated by the Company pursuant to Section 8.01(d8.01(f) or by Parent CF Corp pursuant to Section 8.01(e8.01(c) or Section 8.01(g), the Company shall within three (3) Business Days after the date of concurrently with such termination, pay ParentCF Corp, as liquidated damages and not as a penalty and as the sole and exclusive remedy of ParentCF Corp, Merger Sub I Parent and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders stockholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either CF Corp or the Company or Parent pursuant to Section 8.01(c8.01(d) or by Parent CF Corp pursuant to Section 8.01(g8.01(i) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Stockholders Meeting or the breach giving rise to ParentCF Corp’s right to terminate under Section 8.01(g8.01(i), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee Board of Directors or the shareholders stockholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Stockholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the earliest of the consummation of such Takeover ProposalProposal or the entry into such definitive agreement with respect thereto, pay ParentCF Corp, as liquidated damages and not as a penalty and as the sole and exclusive remedy of ParentCF Corp, Merger Sub I Parent and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders stockholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to ; provided, that for the contrary contained in this Agreement, Parent’s right to receive payment purposes of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b8.02(b)(ii), none of all references in the Company term Takeover Proposal to “15% or any of its Affiliates or any of their respective partners, members, shareholders or Representatives more” shall have any further liability or obligation relating be deemed to or arising out of this Agreement, the Mergers or the other transactions contemplated herebybe references to “more than 50%.”

Company Termination Fee. (i) If In the event that this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e9.01(d)(i), the Company shall pay to the Fund Manager a fee equal to $21,500,000 (the “Company Termination Fee”) prior to such termination by wire transfer of same day funds to one or more accounts designated by Fund Manager (except that if the Fund Manager shall not have so designated one or more accounts to the Company by 12:00 pm, New York City time, on the final day of the Notice Period, the Company shall be permitted to terminate this Agreement pursuant to Section 9.01(d)(i) without paying the Company Termination Fee prior to such termination; provided, that the Company shall thereafter pay the Company Termination Fee to the Fund Manager within three two (32) Business Days of the later to occur of (A) the termination of this Agreement pursuant to Section 9.01(d)(i) and (B) the date that the Fund Manager shall have designated such account or accounts to the Company). (ii) In the event that this Agreement is terminated pursuant to Section 9.01(c)(ii), the Company shall pay the Company Termination Fee to the Fund Manager promptly, but in any event within two (2) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundssame day funds to one or more accounts designated by the Fund Manager. (iiiii) If In the event that this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c9.01(b)(iii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting the Company Board has made a Change of Recommendation based on an Intervening Event, the Company shall pay the Company Termination Fee to Fund Manager promptly, but in any event within two (2) Business Days after the date of such termination, by wire transfer of same day funds to one or more accounts designated by Fund Manager. (iv) In the breach giving rise event that (A) after the date of this Agreement (and in the case of a termination pursuant to Parent’s right to terminate under Section 8.01(g9.01(b)(iii), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting (or any adjournment thereof)) an Alternative Transaction Proposal shall have become publicly known and not withdrawn, (B) thereafter, this Agreement is terminated (1) by Parent or the breachCompany pursuant to Section 9.01(b)(i), respectively(2) by Parent or the Company pursuant to Section 9.01(b)(iii), or (3) by Parent pursuant to Section 9.01(c)(i), and (BC) within twelve (12) 12 months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover providing for any transaction contemplated by any Alternative Transaction Proposal (whether regardless of when made) (which transaction is thereafter consummated) or not within such twelve consummates any Alternative Transaction Proposal (12) month periodregardless of when made), then the Company shall upon shall, on the consummation of date such Takeover ProposalAlternative Transaction Proposal is consummated, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained Fund Manager; provided that for purposes of clause (C) of this Section 9.02(b)(iv), the term “Alternative Transaction Proposal” shall have the meaning set forth in this Agreement, Parent’s right Section 6.02(i)(i) except that all references to receive payment of “twenty (20) percent or more” shall be deemed to be references to “fifty (50) percent or more” . In no event shall the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebypaid more than once.

Company Termination Fee. (i) If this Agreement is terminated (A) by the Company pursuant to Section 8.01(d) or (B) by Parent pursuant to Section 8.01(e) or Section 8.01(i), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I Parent and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders stockholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee. If the Company Termination Fee is payable pursuant to clause (A) of the preceding sentence, the Company Termination Fee shall be paid on the date of such termination and if the Company Termination Fee is payable pursuant to clause (B) of the preceding sentence, the Company Termination Fee shall be paid within two (2) Business Days after the date of such termination, in each case, by wire transfer of immediately available fundsfunds to an account designated by Parent in writing. (ii) If this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as (other than a result termination because of a breach of any covenant or agreement contained the representations and warranties set forth in this Agreement Section 4.09(b)) and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectivelysuch termination, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders stockholders of the Company or any Person shall have publicly announced an intention (whether or and not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, such breach and (B) within twelve (12) months after of such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon shall, within two (2) Business Days after the consummation of Company consummates such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I Parent and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders stockholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee by wire transfer of immediately available funds; provided that, for the purposes of this Section 8.02(b)(ii), all references in the term Takeover Proposal to “15% or more” shall be deemed to be references to “more than 50%.” (iii) Notwithstanding anything The parties agree and understand that in no event shall the Company be required to the contrary contained in this Agreement, Parent’s right to receive payment of pay the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyon more than one occasion.

Company Termination Fee. (i) If the Company terminates this Agreement is terminated by the in accordance with Section 8.01(c)(i) (Superior Company Proposal) or Parent terminates this Agreement pursuant to Section 8.01(d8.01(d)(i) or by Parent pursuant to Section 8.01(e(Company Adverse Recommendation Change), the Company shall within pay to Parent the Company Termination Fee. The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to or concurrently with such termination of this Agreement by the Company in accordance with Section 8.01(c)(i) (provided, in furtherance of Section 8.01(c)(i), the receipt of the Company Termination Fee by Parent shall be required to validly terminate this Agreement) or no later than three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy termination of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers this Agreement by Parent pursuant to be consummated, the Company Termination Fee by wire transfer of immediately available fundsSection 8.01(d)(i). (ii) If (1) either (A) Parent or the Company terminates this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c8.01(b)(i) (End Date) (but only if the Parent Termination Fee is not also payable under Section 8.02(b)(i) or by Section 8.02(b)(ii)) or Section 8.01(b)(iii) (No Company Shareholder Approval) or (B) Parent terminates this Agreement pursuant to Section 8.01(g8.01(d)(ii) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(gTerminable Breach), respectively, (2) a Company Takeover Proposal shall have been publicly announced disclosed or publicly made known to the Company Special Committee or Company Board after the shareholders date hereof, and is not withdrawn, and in the case of a publicly disclosed Company Takeover Proposal, publicly withdrawn, (A) in the case of a termination pursuant to Section 8.01(b)(i) (End Date) or Section 8.01(d)(ii) (Company Terminable Breach), prior to the date of such termination, or (B) in the case of a termination pursuant to Section 8.01(b)(iii) (No Company Shareholder Approval), prior to the date of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelyMeeting, and (B3) within twelve (12) months after such terminationthe termination of this Agreement, the Company either consummates shall have entered into any Company Acquisition Agreement, or consummated such Company Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period)Proposal, then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. to Parent (iii) Notwithstanding anything to the contrary contained an account designated in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.writing by

Company Termination Fee. (i) If this Agreement is validly terminated (x) by the Company pursuant to Section 8.01(d10.01(d)(i) or (y) by Parent pursuant to Section 8.01(e10.01(c)(i) or Section 10.01(c)(ii), then the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee to Parent (or its designee), prior to or substantially concurrently with the termination in the case of a termination by the Company, or as promptly as practicable (and, in any event, within two Business Days following such termination) in the case of a termination by Parent, in each case, payable by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof of this Agreement and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectivelytime of valid termination of this Agreement, a Takeover bona fide Acquisition Proposal shall have been publicly announced or publicly made known to the Company Special Committee Board or the shareholders of the Company or any Person shall have is publicly announced an intention (whether or not conditional) to make a Takeover Proposal and by the Person making such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breachAcquisition Proposal, respectively, and (B) thereafter, this Agreement is validly terminated by Parent or the Company pursuant to Section 10.01(b)(i) or Section 10.01(b)(iii) and (C) within twelve (12) 12 months after such termination, either an Acquisition Proposal is consummated by the Company either consummates such Takeover Proposal or the Company enters into a definitive agreement providing for the consummation of an Acquisition Proposal that is later consummated (which need not be the same Acquisition Proposal that was publicly announced prior to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month periodvalid termination of this Agreement), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer of immediately available fundssame-day funds on the date of consummation of such Acquisition Proposal. For purposes of this Section 11.04(b)(ii), all references to “15%” and “85%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”. (iii) Notwithstanding anything In no event shall the Company be required to the contrary contained in this Agreement, Parent’s right to receive payment of pay the Company Termination Fee pursuant on more than one occasion. (iv) In the event that the Company shall fail to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of pay the Company Termination Fee as and when required pursuant to Section 11.04(b)(i) or Section 11.04(b)(ii), (A) such amount shall accrue interest for the period commencing on the date such amount became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York in effect on the date such payment was required, as such bank’s prime lending rate (or such lesser rate as is the maximum permitted by Applicable Law), and (B) the Company shall reimburse Parent for all costs and expenses (including fees and disbursements of counsel) incurred in connection with the collection of such amounts and the enforcement by Parent of its rights in respect thereof. (v) Section 10.02 and this Section 11.04(b) shall not limit the rights of Parent or the Company to specific performance of this Agreement prior to the valid termination of this Agreement in accordance with this Section 8.02(b)its terms, none of and the election to pursue an injunction, specific performance or other equitable relief shall not restrict, impair or otherwise limit Parent or the Company from concurrently seeking, or any seeking in the alternative, to terminate this Agreement and collect the Company Termination Fee (in the case of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyParent) and monetary damages.

Company Termination Fee. (i) If (A) this Agreement is validly terminated by pursuant to Sections 8.1(c), 8.1(d) or 8.1(e); (B) (1) following the Company execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 8.01(d8.1(d), a bona fide Acquisition Proposal for an Acquisition Transaction has been publicly announced and not publicly withdrawn, or (2) or by Parent following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 8.01(e8.1(c) or 8.1(e), a bona fide Acquisition Proposal for an Acquisition Transaction has been communicated to the Company Board or publicly announced and not withdrawn (publicly in the case of a publicly announced Acquisition Proposal); and (C) within twelve (12) months following the termination of this Agreement pursuant to Sections 8.1(c), 8.1(d) or 8.1(e) either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction, then the Company shall promptly (and in any event within three two (32) Business Days Days) after the date earlier of (x) entry into a definitive agreement providing for the consummation of the Acquisition Transaction and (y) such terminationconsummation of the Acquisition Transaction, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), all references to “20%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%”. (ii) If this Agreement is validly terminated by either the Company or Parent pursuant to Section 8.01(c8.1(f)(i) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period8.1(f)(ii), then the Company shall upon the consummation of must promptly (and in any event within two (2) Business Days) following such Takeover Proposaltermination pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, to Parent the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iii) Notwithstanding anything If this Agreement is validly terminated pursuant to Section 8.1(h), then the contrary contained in this AgreementCompany must substantially concurrently with such termination pay, Parent’s right or cause to receive payment of be paid, to Parent the Company Termination Fee pursuant by wire transfer of immediately available funds to this Section 8.02(b) constitute the sole and exclusive remedy of Parent an account or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee accounts designated in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebywriting by Parent.

Company Termination Fee. (i) If either the Company or Parent terminates this Agreement pursuant to Section 8.1(g) or Parent terminates this Agreement pursuant to Section 8.1(b) due to a breach by the Company, within three (3) business days after such termination the Company shall pay or cause to be paid to Parent any and all out-of-pocket fees and expenses (including fees and expenses of financial advisors, outside legal counsel, accountants, experts, consultants and other Representatives), but excluding any VAT for which Parent (or any member of a VAT Group of which Parent is terminated a member) is entitled to a refund, repayment or credit from any relevant tax authority, actually incurred by or on behalf of Parent in connection with the authorization, preparation, negotiation, execution or performance of this Agreement and the Transactions (the “Parent Expenses”), in an aggregate amount not to exceed $45,000,000 in cash; provided that the payment by the Company of the Parent Expenses pursuant to this Section 8.2(b)(i) shall not relieve the Company of any subsequent obligation to pay the Company Termination Fee pursuant to Section 8.2(b) except to the extent indicated in such section, and (ii) shall not relieve the Company from any liability for damages resulting from a Willful Breach of any of its representations, warranties, covenants or agreements set forth in this Agreement or fraud. To the extent a Company Termination Fee becomes payable, any payment previously made pursuant to this Section 8.2(b)(i) shall be credited against such obligation of the Company to pay the Company Termination Fee. (ii) If (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(c) or Section 8.1(g) or Parent terminates this Agreement pursuant to Section 8.1(b) due to a breach by the Company (provided that such breach occurred following a Company Competing Proposal received after the date hereof), (B) after the date hereof a Company Competing Proposal shall have been publicly disclosed and not publicly, irrevocably withdrawn prior to the date of the Company Special Meeting, and (C)(1) any Company Competing Proposal is consummated within twelve (12) months of such termination or (2) the Company enters into a definitive agreement providing for a Company Competing Proposal within twelve (12) months of such termination and such Company Competing Proposal is consummated, within one (1) business day after the date any such Company Competing Proposal is consummated, the Company shall pay or cause to be paid to Parent a fee of $255,000,000 in cash (the “Company Termination Fee”). Solely for purposes of this Section 8.2(b)(ii), the term “Company Competing Proposal” shall have the meaning assigned to such term in Section 9.5, except that all references to “20%” therein shall be deemed to be references to “50%”. (iii) If the Company terminates this Agreement pursuant to Section 8.1(i), concurrently with, and as a condition to, such termination, the Company shall pay or cause to be paid to Parent the Company Termination Fee. (iv) If Parent terminates this Agreement pursuant to Section 8.1(d), within three (3) business days after such termination, the Company shall pay or cause to be paid to Parent the Company Termination Fee. (v) In the event any amount is payable by the Company pursuant to Section 8.01(dthe preceding clauses (i), (ii), (iii) or by Parent pursuant to Section 8.01(e(iv), the Company such amount shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee paid by wire transfer of immediately available funds. (ii) If this Agreement is terminated funds to an account designated in writing by either Parent. For the avoidance of doubt, in no event shall the Company or Parent pursuant be obligated to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundson more than one occasion. (iiivi) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment The Company confirms that it is established outside of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives European Union for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyVAT purposes.

Company Termination Fee. (ia) If Despite any other provision in this Agreement is terminated by relating to the payment of fees and expenses, if a Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e)Termination Fee Event occurs, the Company shall within three (3) Business Days after pay the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of Buyer the Company Termination Fee in accordance with this Section 8.02(b7.06(c), none and shall pay to the Buyer the principal amount, together with all accrued and unpaid interest, outstanding under the Bridge Loan in immediately available funds and provide to the Buyer evidence of such payment having been made. (b) For the purposes of this Agreement, “Company Termination Fee” means $1,500,000 and “Company Termination Fee Event” means the termination of this Agreement: (i) by the Buyer pursuant to Section 8.03(b); (ii) by the Company pursuant to Section 8.04(b); or (iii) by the Company or the Buyer pursuant to Section 8.02(a) or by the Buyer pursuant to Section 8.03(a) due to a wilful breach or fraud on the part of the Company if: (A) following the date of this Agreement and prior to such termination, an Acquisition Proposal is made or publicly announced by any Person (other than the Buyer or any of its affiliates); and (B) within 12 months following the date of such termination (i) an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (A) above) is consummated or effected or (ii) the Company or any of its Affiliates Subsidiaries, directly or indirectly, in one or more transactions, enters into a Contract in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (A) above) and such Acquisition Proposal is later consummated (whether or not within 12 months after such termination). (c) If a Company Termination Fee Event occurs due to a termination of this Agreement by the Company pursuant to Section 8.04(b), the Company Termination Fee shall be paid prior to or concurrently with the occurrence of such Company Termination Fee Event. If a Company Termination Fee Event occurs due to a termination of this Agreement by the Buyer pursuant to Section 8.03(b), the Company Termination Fee shall be paid within two (2) Business Days following such Company Termination Fee Event. If a Company Termination Fee Event occurs in the circumstances set out in Section 7.06(b)(iii), the Company Termination Fee shall be paid upon the consummation of the Acquisition Proposal referred to therein. Any Company Termination Fee shall be paid by the Company to the Buyer (or as the Buyer may direct by notice in writing), by wire transfer in immediately available funds to an account designated by the Buyer. (d) If the Company does not have sufficient financial resources to pay the Company Termination Fee, then it shall be a condition of any Superior Proposal that the person making such Superior Proposal shall advance or otherwise provide to the Company the cash required for the Company to pay the Company Termination Fee, which amount shall be so advanced or provided before the date on which the Company is required to pay the Company Termination Fee. (e) The Company acknowledges that the agreements contained in this Section 7.06 are an integral part of the transactions contemplated by this Agreement and that without these agreements the Buyer would not enter into this Agreement and that the amounts set out in this Section 7.06 represent liquidated damages which are a genuine pre-estimate of the damages, including opportunity costs, reputational damage and out-of-pocket expenditures which the Buyer will suffer or incur as a result of the event giving rise to such damages and the resultant termination of this Agreement and are not penalties. The Company irrevocably waives any right that it may have to raise as a defence that any such liquidated damages are excessive or punitive. In the event that the Company Termination Fee is paid in full to the Buyer (or as it directs) in the manner provided in this Section 7.06, no other amounts will be due and payable as damages or otherwise by the Company and the Buyer hereby accepts that such payments are the maximum aggregate amount that the Company shall be required to pay in lieu of any damages or any other payments or remedy which the Buyer may be entitled to in connection with this Agreement or the transactions contemplated by this Agreement; provided, however, that nothing contained in this Section 7.06 and no payment of their respective partnersthe Company Termination Fee, members, shareholders shall relieve or Representatives shall have the effect of relieving the Company in any further way for liability for damages incurred or obligation relating to suffered by the Buyer as a result of an intentional or arising out wilful breach of this AgreementAgreement and nothing contained in this Section 7.06 shall preclude the Company from seeking injunctive relief in accordance with Section 9.05 to restrain the breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any of such acts, covenants or agreements, without the Mergers requirement for the securing or the other transactions contemplated herebyposting of any bond in connection therewith.

Company Termination Fee. The Company shall pay Acquiror a termination fee in the aggregate amount of (x) Seven Million Dollars ($7,000,000) plus (y) the aggregate amount of fees and expenses including all reasonable legal, financial and accounting fees, incurred by Acquiror in connection with the negotiating, drafting and carrying out the terms of this Agreement and the transactions contemplated hereby, in the manner and at the time set forth in Section 10.2(c), in the event that this Agreement is terminated as follows: (i) If Acquiror shall terminate this Agreement is terminated by the Company pursuant to Section 8.01(d10.1(f)(i) or by Parent pursuant to Section 8.01(e(ii), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds.; (ii) If the Company shall terminate this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c10.1(e)(i); or (iii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and In the event that (A) at any time after the date hereof and prior to an Acquisition Proposal involving the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced announced, commenced or otherwise become publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover an Acquisition Proposal involving the Company, (B) thereafter this PALOALTO 66463 v1 (2K) -67- Agreement is terminated by either Acquiror or the Company pursuant to (x) Section 10.1(b) for failure of the Company Merger to be consummated by the date specified therein and such Takeover Proposal failure is the result of the knowing action or such intent has not been publicly withdrawn inaction of the Company or repudiated by such Person prior to (y) Section 10.1(d) for failure of the Company Shareholders Meeting or to approve the breach, respectivelyadoption of this Agreement, and (Bc) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out termination of this Agreement, the Mergers Company enters into or consummates an Acquisition Proposal with respect to the other Company. The Company shall pay Acquiror a termination fee in the aggregate amount of (x) Two Million Dollars ($2,000,000) plus (y) the aggregate amount of fees and expenses including all reasonable legal, financial and accounting fees, incurred by Acquiror in connection with the negotiating, drafting and carrying out the terms of this Agreement and the transactions contemplated hereby, in the manner and at the time set forth in Section 10.2(c) in the event that the Acquiror terminates this Agreement pursuant to Section 10.1(f)(iii). The termination fees described above in this Section 10.2(b) are herein referred to as the “Termination Fee”. Payment of the Termination Fee to Acquiror, pursuant to this Section 10.2(b), shall be the sole and exclusive liability of the Company to and the sole remedy of Acquiror for any termination of this Agreement as set forth in paragraphs (i), (ii) and (iii) of this Section 10.2(b), or the actions, events, occurrences or circumstances giving rise to any such termination, except in the case of a termination for material breach of Section 7.3 in which case the Company Termination Fee shall not be the sole remedy available to Acquiror and Acquiror shall be entitled to pursue all remedies to which it is entitled at Law or in equity, and as provided in Section 10.2(d).

Company Termination Fee. (ia) If this Agreement is terminated validly terminated: (i) (A) by Parent or the Company pursuant to Section 8.01(d7.1(b) or by Parent pursuant to Section 8.01(e(End Date), the (B) a Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly disclosed or made known to the Company Special Committee Board of Directors after the date of this Agreement and not withdrawn at least three (3) Business Days prior to termination, and (C) (1) the Parent Stockholder Approval shall have been obtained, (2) the Company Stockholder Approval shall not have been obtained and (3) all other conditions set forth in Section 6.1 and Section 6.3 were satisfied or capable of being satisfied at the time of such termination; (ii) (A) by Parent or the shareholders of the Company or any Person shall have publicly announced an intention pursuant to Section 7.1(d)(i) (whether or not conditionalCompany Stockholder Approval Not Obtained) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within a Company Takeover Proposal shall have been publicly announced or publicly disclosed after the date of this Agreement and not withdrawn at least three (3) Business Days prior to the date of the Company Stockholder Meeting; or (iii) (A) by Parent pursuant to Section 7.1(f) (Company Terminable Breach) and (B) a Company Takeover Proposal shall have been publicly announced or publicly disclosed or made to the Company Board of Directors after the date of this Agreement and not withdrawn at least three (3) Business Days prior to the date of the breach giving rise to such right of termination; and in the case of each of the foregoing clauses (i) through (iii), at any time on or prior to the twelve (12) months after 12)-month anniversary of the date of such termination, the Company either consummates such Takeover Proposal or any of its Subsidiaries enters into a definitive agreement to consummate such with respect to, or consummates, a transaction included within the definition of a Company Takeover Proposal and with any person (a “Company Takeover Transaction”), the Company thereafter consummates shall pay or cause to be paid to Parent (or Parent’s designee) the Company Termination Fee, by wire transfer (to an account designated by Parent) in immediately available funds, concurrently with the consummation of any such Company Takeover Proposal Transaction (whether or not within such twelve (12) month period); provided, then that for the purposes of this Section 7.3(a) only, all references in the definition of Company Takeover Proposal to “fifteen percent (15%)” shall be deemed to be references to “fifty percent (50%).” (b) If (i) Parent terminates this Agreement pursuant to Section 7.1(h)(i) (Company Adverse Recommendation Change) or (ii) Parent or the Company terminates this Agreement pursuant to Section 7.1(d)(i) (Company Stockholder Approval Not Obtained) following any time when Parent is entitled to terminate this Agreement pursuant to Section 7.1(h)(i) (Company Adverse Recommendation Change), the Company shall upon the consummation of such Takeover Proposal, pay or cause to be paid to Parent (or Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against ’s designee) the Company and its Subsidiaries and any of their respective AffiliatesTermination Fee, shareholders or Representatives for any loss or damage suffered as a result of by wire transfer (to an account designated by Parent) in immediately available funds, within two (2) Business Days after such termination. (c) If the failure of the Mergers Company terminates this Agreement pursuant to be consummatedSection 7.1(g)(i) (Company Superior Proposal), the Company shall pay or cause to be paid to Parent (or Parent’s designee) the Company Termination Fee Fee, by wire transfer of (to an account designated by Parent) in immediately available funds. (iii) Notwithstanding anything , prior to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to substantially concurrently with such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (a) In the event that: (i) If (A) this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e), the Company shall within three 8.01(c)(i) (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as other than a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result termination because of a breach of any covenant or agreement contained in this Agreement and Section 4.06(b)), (AB) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g8.01(c)(i), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the holders of Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention Shares and not withdrawn at least three (whether or not conditional3) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person business days prior to the Company Shareholders Meeting or the breach, respectively, such breach and (BC) within twelve (12) months after such termination, the Company either consummates such any Takeover Proposal or enters into a definitive written agreement to consummate such any Takeover Proposal and the Company thereafter consummates such any Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and to Parent or its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, designee the Company Termination Fee by wire transfer of immediately available funds.same-day funds within two (2) business days after the consummation of the Takeover Proposal; provided that for purposes of this Section 8.03(a)(i), the references to “20%” in the definition of Takeover Proposal shall be deemed to be references to “50%”; (iiiii) Notwithstanding anything (A) this Agreement is terminated by either Parent or the Company pursuant to Section 8.01(b)(iii), (B) at any time after the date hereof and prior to the contrary contained Company Shareholders Meeting, a Takeover Proposal shall have been publicly announced or publicly made known to the holders of Company Shares and not publicly withdrawn at least ten (10) business days prior to the Company Shareholders Meeting and (C) within twelve (12) months after such termination, the Company either consummates any Takeover Proposal or enters into a definitive written agreement to consummate any Takeover Proposal and the Company thereafter consummates any Takeover Proposal (whether or not within such twelve (12) month period), the Company shall pay to Parent or its designee the Company Termination Fee by wire transfer of same-day funds within two (2) business days after the consummation of the Takeover Proposal; provided, however, that if the Takeover Proposal that is consummated by the Company does not involve the Person who made the Takeover Proposal described in clause (B) or an Affiliate of such Person, the amount payable under this Agreement, Parent’s right Section 8.03(a)(ii) shall be reduced to receive payment fifty percent (50%) of the Company Termination Fee (the “Alternate Fee”); provided, further, that for purposes of this Section 8.03(a)(ii), the references to “20%” in the definition of Takeover Proposal shall be deemed to be references to “50%”; (iii) this Agreement is terminated by the Company pursuant to this Section 8.02(b) constitute 8.01(d)(ii), the sole and exclusive remedy of Company shall pay the Company Termination Fee to Parent or any its designee by wire transfer of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to same-day funds simultaneously with such termination; or (iv) this Agreement is terminated by Parent pursuant to Section 8.01(c)(ii), and upon payment the Company shall pay the Company Termination Fee to Parent or its designee by wire transfer of same-day funds within two (2) business days after such termination. In no event shall the Company be required to pay (x) the Company Termination Fee or the Alternate Fee more than once or (y) both of the Company Termination Fee and the Alternate Fee. (b) Each of the parties acknowledges that the agreements contained in accordance with this Section 8.02(b), none 8.03 are an integral part of the Company or any of its Affiliates or any of their respective partnersTransactions, membersand that without these agreements, shareholders or Representatives shall have any further liability or obligation relating to or arising out of the other parties would not enter into this Agreement; accordingly, if the Company fails to timely pay any amount due pursuant to this Section 8.03, and, in order to obtain the payment, Parent commences an Action which results in a judgment against the Company for the payment set forth in this Section 8.03, the Mergers or Company shall pay Parent for its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Action, together with interest on such amount at the other transactions contemplated herebyprime 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.

Company Termination Fee. (i) If In the event that (x) this Agreement is terminated (1) by Parent or the Company pursuant to Section 8.01(d9.1(b) or (2) by either Parent or the Company pursuant to Section 9.1(d) or (3) by Parent pursuant to Section 8.01(e9.1(f), (y) at or prior to the Company time of the termination of this Agreement an Acquisition Transaction, Acquisition Proposal or Acquisition Inquiry shall within three have been publicly disclosed or announced and (3z) Business Days on or prior to 9 months after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and shall have entered into a definitive agreement with respect to any Acquisition Transaction or consummated any Acquisition Transaction (provided, however, that, solely for purposes of their respective Affiliatesthis Section 9.3(b)(i), shareholders or Representatives for any loss or damage suffered as a result all references to "15%" in the definition of "Acquisition Transaction" shall be deemed to refer instead to "50%."), then the failure of the Mergers Company shall be obligated to be consummated, pay to Parent the Company Termination Fee by and such payment shall be made prior to or concurrently with the earlier of the date of the entry of the Company into the definitive agreement with respect to, or the consummation of, the Acquisition Transaction referred to in subclause (z); provided, however, that if Parent has not provided wire transfer of immediately available fundsinformation to the Company for the Company Termination Fee at least 1 Business Day prior to the date such payment is due to Parent, then the Company Termination Fee shall be paid 1 Business Day after such wire instructions are provided to the Company. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c9.1(e) or by Parent the Company pursuant to Section 8.01(g) as a result of a breach of any covenant 9.1(h), or agreement contained in if this Agreement and (A) is terminated by Parent or the Company pursuant to any other provision of Section 9.1 at any time after the occurrence of a Parent Triggering Event, then, in any such case, the Company shall be obligated to pay, and shall pay, to Parent the Company Termination Fee. In the case of any termination by the Company relating to a Company Triggering Event, the Company shall pay the Company Termination Fee to Parent prior to or concurrently with the date hereof and of such termination; provided, however, that if Parent has not provided wire information to the Company for the Company Termination Fee at least 1 Business Day prior to the Company Shareholders Meeting or the breach giving rise date such payment is due to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company Termination Fee shall upon be paid 1 Business Day after such wire instructions are provided to the consummation Company. In the case of such Takeover Proposalany termination by Parent or Company relating to, pay Parentor following, as liquidated damages and not as a penalty and as the sole and exclusive remedy of ParentParent Triggering Event, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, shall pay Parent the Company Termination Fee by within 5 Business Days after such termination; provided, however, that if Parent has not provided wire transfer of immediately available funds. (iii) Notwithstanding anything information to the contrary contained in this Agreement, Parent’s right to receive payment of Company for the Company Termination Fee pursuant at least 1 Business Day prior to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Companydate such payment is due to Parent, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of then the Company Termination Fee in accordance with this Section 8.02(b), none of shall be paid 1 Business Day after such wire instructions are provided to the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyCompany.

Company Termination Fee. (i) If In the event that (A) this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(b), Section 9.1(c) or by Parent Section 9.1(g)(i), (B) following the execution of this Agreement and prior to the Termination Date (as the same may be extended) (or with respect to a termination pursuant to Section 8.01(e9.1(c), the time at which a vote is taken on the adoption of this Agreement at the Company Stockholder Meeting (or an adjournment or postponement thereof)) an offer or proposal for a Competing Acquisition Transaction is publicly announced, publicly disclosed or otherwise made public (whether or not subsequently withdrawn), and (C) within twelve (12) months following the termination of this Agreement the Company or any of its Subsidiaries (x) consummates any Competing Acquisition Transaction or (y) enters into a definitive Contract to consummate any Competing Acquisition Transaction and, in the case of (y), any Competing Acquisition Transaction is subsequently consummated, then Table of Contents on the date of the consummation of such Competing Acquisition Transaction, the Company shall within three pay to Parent a fee equal of twenty-one million seven hundred fifty thousand Dollars (3$21,750,000) Business Days after in cash (the date “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In the event that this Agreement is terminated pursuant to Section 9.1(f), then, immediately prior to or concurrently with, and as a condition to the effectiveness of, such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders shall pay or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummated, paid to Parent (or its designee) the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iiiii) If In the event that this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c9.1(h) or by Parent pursuant to Section 8.01(g9.1(i) as a result of a breach of any covenant or agreement contained in this Agreement and then within one (A1) at any time Business Day after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal shall pay or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummated, paid to Parent the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iiiiv) Notwithstanding anything For the avoidance of doubt, in the event this Agreement is terminated by the Company for any reason at a time when Parent would have had the right to the contrary contained in terminate this Agreement, Parent’s right Parent shall be entitled to receive payment receipt of any Company Termination Fee that would have been (or would have subsequently become) payable had Parent terminated this Agreement at such time. (v) The parties hereto acknowledge and hereby agree that in no event shall the Company be required to pay the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent on more than one occasion, whether or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of not the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out may be payable under more than one provision of this Agreement, Agreement at the Mergers same or at different times and the other transactions contemplated herebyoccurrence of different events.

Company Termination Fee. (a) If (i) Parent or the Company terminates this Agreement pursuant to Section 7.1(b) (and at the End Date all of the conditions to the Company’s obligations to close other than receipt of the Company Stockholder Approval have been satisfied, or are capable of satisfaction had the Closing occurred on the End Date), Section 7.1(d) or Section 7.1(f) (arising from a Willful Breach of the Company’s covenants or agreements set forth in this Agreement), (ii) a Company Takeover Proposal shall have been publicly announced or publicly disclosed after the date of this Agreement and prior to (A) the End Date (in the case of a termination pursuant to Section 7.1(b)), (B) the Company Stockholder Meeting (in the case of a termination pursuant to Section 7.1(d)) or (C) the date of the breach giving rise to such termination (in the case of a termination pursuant to Section 7.1(f) (arising from a Willful Breach of the Company’s covenants or agreements set forth in this Agreement)), and was not definitively withdrawn at least three Business Days prior to (X) the End Date (in the case of a termination pursuant to Section 7.1(b)), (Y) the Company Stockholder Meeting (in the case of a termination pursuant to Section 7.1(d)) or (Z) the date of the breach giving rise to such termination (in the case of a termination pursuant to Section 7.1(f) (arising from a Willful Breach of the Company’s covenants or agreements set forth in this Agreement)) and (iii) at any time on or prior to the date that is 12 months following the date of such termination, the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, a transaction included within the definition of a Company Takeover Proposal with any Person (a “Company Takeover Transaction”), the Company shall pay or cause to be paid to Parent the Company Termination Fee, by wire transfer (to an account designated by Parent) in immediately available funds, upon the earlier of entering into such definitive agreement with respect to any Company Takeover Transaction and the consummation of any Company Takeover Transaction; provided that for the purposes of clause (iii) only, all references in the definition of Company Takeover Proposal to “25%” shall be deemed to be references to “50%.” (b) If Parent terminates this Agreement pursuant to Section 7.1(h), the Company shall pay or cause to be paid to Parent the Company Termination Fee, by wire transfer (to an account designated by Parent) in immediately available funds, within three Business Days after such termination. (c) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e7.1(g), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummated, paid to Parent the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company prior to or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) concurrently with, and as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior condition to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g)effectiveness of, respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (i) If In the event that (A) this Agreement is terminated pursuant to Section 9.1(d) or (B) (1) BancShares materially breached any of its obligations under Section 7.4, and (2) this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(e) or Section 9.1(f) if, as of the time of such termination, all conditions in ARTICLE VIII have been satisfied or waived other than the conditions set forth in Section 8.1(b) or other than the conditions that by Parent pursuant to Section 8.01(e)their nature can only be satisfied at the Closing, BancShares shall pay the Company shall within three a termination fee of $8,800,000 (3the “Company Termination Fee”) not later than two Business Days after the date of such termination, pay Parent, as liquidated damages termination of this Agreement. (ii) Any termination fee and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to other amounts payable in accordance with this Section 9.3(b) shall be consummated, the Company Termination Fee paid by wire transfer of immediately available funds. (ii) If this Agreement is terminated funds to an account designated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement Company. BancShares acknowledges that the agreements contained in this Section 9.3(b) are an integral part of the transactions contemplated by this Agreement and that absent such agreements the Company would not have entered into this Agreement. In the event BancShares fails to timely make payment of any amounts due and payable by BancShares under this Section 9.3(b), BancShares shall pay or reimburse the Company all costs and expenses (Aincluding reasonable attorneys’ fees and expenses and court costs) incurred by the Company in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such amounts unpaid at any time after the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers amounts were required to be consummated, paid until the Company Termination Fee by wire transfer date of immediately available fundsactual payment. (iii) Notwithstanding anything herein to the contrary contained in this Agreementcontrary, Parent’s right to receive payment of the Company Termination Fee and other amounts payable pursuant to this Section 8.02(b9.3(b) constitute liquidated damages and not a penalty and, except in the case of fraud or willful or intentional breach of this Agreement, shall be the sole and exclusive monetary remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of Company in the event this Agreement is terminated under the circumstances giving rise described in Section 9.3(b) pursuant to such termination, and upon payment of which the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyis payable.

Company Termination Fee. (i) If this Agreement is validly terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e10.01(c)(i), then the Company shall cause OpCo LLC or one of its Subsidiaries to pay the Company Termination Fee to Parent or its designee in immediately available funds within three two (32) Business Days after the date of such valid termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is validly terminated by either the Company or Parent pursuant to Section 8.01(c10.01(d)(i), then the Company shall cause OpCo LLC or one of its Subsidiaries to pay the Company Termination Fee to Parent or its designee in immediately available funds substantially concurrently with such valid termination. (iii) If (A) this Agreement is validly terminated (x) by Parent or the Company pursuant to Section 10.01(b)(iii) or (y) by Parent pursuant to Section 8.01(g10.01(c)(ii) as a result by reason of a breach of any or failure to perform a covenant or agreement contained set forth in this Agreement and by the Company, (AB) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) disclosed a bona fide Acquisition Proposal after the date of this Agreement and prior to make a Takeover Proposal such termination, and such Takeover Acquisition Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelysuch termination, and (BC) within twelve (12) months after such termination, termination the Company either consummates such Takeover Proposal or enters shall have entered into a definitive agreement with respect to consummate such Takeover Proposal and the Company thereafter consummates such Takeover an Acquisition Proposal (which Acquisition Proposal is subsequently consummated, whether during or not within following such twelve (12) month period) or consummated an Acquisition Proposal; provided that for purposes of this clause (C) the references to “twenty percent (20%), ” and “eighty percent (80%)” in the definition of “Acquisition Proposal” shall be deemed to be references to “fifty percent (50%)”; then the Company shall upon pay or cause OpCo LLC or one of its Subsidiaries to pay the Company Termination Fee to Parent or its designee by wire transfer of same day funds prior to or concurrently with the consummation of such Takeover Acquisition Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (a) If this Agreement is terminated (x) by Parent pursuant to Section 7.4(a) (Company Change in Recommendation) or (y) by the Company pursuant to Section 7.3(c) (Company Superior Proposal), then the Company shall, within two (2) Business Days after such termination in the case of clause (x) or concurrently with such termination in the case of clause (y), pay Parent a fee equal to $69,000,000 (the “Company Termination Fee”). In no event shall the Company be required to pay the Company Termination Fee or the Parent Expenses on more than one occasion. (b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 7.2(a) (Termination Date) or Section 7.2(b) (Company Stockholder Approval), (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement, a bona fide Company Acquisition Proposal shall have been publicly made to the Company or its stockholders and not publicly withdrawn, and (iii) within nine (9) months after the date of a termination in either of the cases referred to in clause (i) of this Section 7.5(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal which is subsequently consummated, then the Company shall pay the Company Termination Fee, less any amount of Parent Expenses previously paid by the Company, concurrently with such consummation; provided that solely for purposes of this Section 7.5(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2(d), except that the references to “twenty (20%) or more” shall be deemed to be references to “eighty percent (80%) or more”. In no event shall the Company be required to pay the Company Termination Fee or the Parent Expenses on more than one occasion. (c) If this Agreement is terminated by Parent or the Company pursuant to Section 8.01(d7.2(b) or by Parent pursuant to Section 8.01(e), the (Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month periodStockholder Approval), then the Company shall upon pay all of the consummation of such Takeover Proposal, pay Parent, as liquidated damages reasonable and not as a penalty and as the sole and exclusive remedy of Parent, documented out-of-pocket expenses incurred by Parent or Merger Sub I in connection with this Agreement and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee transactions contemplated by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right in an amount not to receive payment of exceed $5,000,000 (the Company Termination Fee pursuant to this Section 8.02(b“Parent Expenses”) constitute the sole and exclusive remedy of Parent or as promptly as practicable (and, in any of its Affiliates against the Companyevent, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to within two (2) Business Days following such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (i) If In the event that (A) this Agreement is terminated (1) by Parent or the Company pursuant to Section 9.1(b) (provided, that (x) the Minimum Condition has not been satisfied at the time of such termination pursuant to Section 9.1(b), (y) the condition to the Offer set forth in clause (A) of Annex A is satisfied at the time of such termination pursuant to Section 9.1(b), and (z) the condition to the Offer set forth in clause (C)(1) of Annex A is satisfied at the time of such termination pursuant to Section 9.1(b)), or (2) by Parent pursuant to Section 9.1(d), (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, an Acquisition Proposal shall have been publicly announced or shall have become publicly disclosed and, in either case, shall not have been publicly withdrawn prior to termination of this Agreement (any such Acquisition Proposal, a “Disclosed Transaction”), and (C) within twelve (12) months following such termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to any Competing Acquisition Transaction that is later consummated or any Competing Acquisition Transaction is consummated, the Company shall pay to Parent $230,000,000 (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, upon the consummation of such Competing Acquisition Transaction. For purposes of the foregoing, a “Competing Acquisition Transaction” shall have the same meaning as an “Acquisition Transaction” except that (i) all references therein to (x) “more than twenty percent (20%)” shall be deemed to be references to “more than fifty percent (50%)” and (y) “less than eighty percent (80%)” shall be deemed to be references to “less than fifty percent (50%),” and (ii) a Competing Acquisition Transaction shall not include a transaction of the type described in clause (iv) of the definition of Acquisition Transaction unless such transaction (1) is a Competing Acquisition Transaction without regard to clause (iv) of the definition of Acquisition Transaction, (2) is a Disclosed Transaction, or (3) together with other transactions entered into by the Company during such twelve (12) month period, results in the grant of exclusive (or exclusive except as to the Company and/or its Subsidiaries) commercialization rights for the Company Product listed as item 1 under the heading “Company Product” on Section 1.1(a) of the Company Disclosure Letter for substantially all major markets. (ii) In the event that this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e9.1(e), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent, as a condition to the effectiveness of such termination. (iiiii) If In the event that this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to 9.1(f), the Company Shareholders Meeting or shall pay to Parent the breach giving rise to Parent’s right to terminate under Section 8.01(gCompany Termination Fee, as promptly as practicable (and in any event within two (2) Business Days following such termination), respectively, a Takeover Proposal shall have been publicly announced by wire transfer of immediately available funds to an account or publicly made known to accounts designated in writing by Parent. (iv) The payment by the Company Special Committee or the shareholders of the Company or any Person Termination Fee pursuant to this Section 9.4(b) shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as be the sole and exclusive remedy of Parent, Merger Parent and Acquisition Sub I and Merger Sub II against in the Company and its Subsidiaries and any event of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result termination of this Agreement under circumstances requiring the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company9.4(b), or any of its Affiliates or any of their respective partnersother than with respect to claims for, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of or in connection with fraud or in the circumstances giving rise to such termination, and upon payment case of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company a willful material breach or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out intentional material breach of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. The Company agrees that if this Agreement shall be terminated: (i) If by Parent pursuant to Section 8.01(c)(ii), then (so long as Parent was not in breach of any of its representations, warranties or covenants in this Agreement is terminated such that the applicable condition to the Company’s obligation to consummate the Merger would not have been satisfied as of the Termination Date) the Company shall pay the Company Termination Fee as directed by Parent in writing; (ii) by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e8.01(d)(ii), then the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee (which Company Termination Fee shall be paid concurrently with such termination) as directed by wire transfer of immediately available funds.Parent in writing; (iiiii) If this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c8.01(b)(iii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof of this Agreement and prior to the Company Shareholders Meeting Stockholders Meeting, or the breach giving rise to Parent’s right to terminate under Section 8.01(g)any postponement or adjournment thereof, respectively, a Takeover an Acquisition Proposal shall have been publicly announced or publicly made known directly to the Company Special Committee or the shareholders of the Company Company’s stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover an Acquisition Proposal, or an Acquisition Proposal shall have otherwise become publicly known, and in each case such Takeover Acquisition Proposal or such intent has shall have not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or date of the breachStockholders Meeting, respectivelythen, and (B) if within twelve (12) months one year after such termination, the Company either consummates shall have made a communication to its stockholders contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer (other than any communication in which the Company rejects such Takeover Proposal tender or enters exchange offer)), with regard to, entered into a definitive agreement with respect to, or consummated, any transaction that would qualify as an Acquisition Proposal under this Agreement, or any transaction of the type referred to consummate in the definition of Acquisition Proposal shall be consummated, then, in any such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period)event, then the Company shall pay to Parent an amount equal to the Company Termination Fee, such payment to be made upon the consummation earliest of the date of such Takeover communication or of the entering into of such an agreement providing for, or consummating, such a transaction or the date on which such a transaction is consummated; or (iv) by either Parent or the Company pursuant to Section 8.01(b)(i) if the Company Stockholders’ Meeting had not been held or was held without taking a vote on the Stockholder Approval and at any time after the date of this Agreement an Acquisition Proposal shall have been made directly to the Company’s stockholders or any Person shall have publicly announced an intention to make an Acquisition Proposal, pay Parentor an Acquisition Proposal shall have otherwise become publicly known, as liquidated damages and in each case such Acquisition Proposal shall have not as a penalty and as been withdrawn prior to the sole and exclusive remedy date of Parentthe Stockholders Meeting (if held) or the date specified in Section 8.01(b)(i) (if the Stockholders Meeting was not held), Merger Sub I and Merger Sub II against then, if within one year after such termination, the Company shall have made a communication to its stockholders contemplated by Rule 14d-9 and its Subsidiaries and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of their respective Affiliatesa tender offer or exchange offer (other than any communication in which the Company rejects such tender or exchange offer)), shareholders with regard to, entered into a definitive agreement with respect to, or Representatives for consummated, any loss transaction that would qualify as an Acquisition Proposal under this Agreement, or damage suffered as a result any transaction of the failure type referred to in the definition of the Mergers to Acquisition Proposal shall be consummated, then, in any such event, the Company shall pay to Parent an amount equal to the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything Fee, such payment to be made upon the contrary contained in this Agreement, Parent’s right to receive payment earliest of the Company Termination Fee pursuant to this Section 8.02(b) constitute date of such communication or of the sole and exclusive remedy entering into of Parent or any of its Affiliates against the Companysuch an agreement providing for, or any of its Affiliates or any of their respective partnersconsummating, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers a transaction or the other transactions contemplated herebydate on which such a transaction is consummated.

Company Termination Fee. (i) If In the event that (A)(1) this Agreement is terminated by the Company or Parent pursuant to Section 8.01(d8.1(b)(i) (Outside Date) or by Parent pursuant to Section 8.01(e8.1(c)(ii) (Company Breach), and an Acquisition Proposal (with, for all purposes of this Section 8.3(a)(i), all percentages included in the definition of “Acquisition Proposal” increased to 50.1%) shall have been publicly announced or otherwise publicly communicated to the Company Board after the date of this Agreement and shall within three not have been publicly withdrawn prior to the date of such termination or (32) this Agreement is terminated by Company or Parent pursuant to Section 8.1 (b)(iii) (No Company Stockholder Approval), and prior to the Stockholders Meeting, an Acquisition Proposal has been publicly announced or otherwise publicly communicated to Company’s stockholders and has not been publicly withdrawn at least five (5) Business Days prior to the Stockholders Meeting, and (B) prior to the date that is twelve (12) months after the date of such termination, pay Parent, as liquidated damages and not as either (x) a penalty and as the sole and exclusive remedy transaction in respect of Parent, Merger Sub I and Merger Sub II against the an Acquisition Proposal is consummated or (y) Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be enters into an Alternative Acquisition Agreement that is later consummated, the Company Termination Fee by wire transfer of immediately available funds.; (ii) If In the event that this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c8.1(c)(i) or (Change of Recommendation); or (iii) In the event that this Agreement is terminated by Parent Company pursuant to Section 8.01(g8.1(d)(i) as a result of a breach of (Superior Proposal); then, in any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g)such event, respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummated, paid the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything in cash to Parent, it being understood that in no event shall Company be required to pay the contrary contained in this Agreement, Parent’s right to receive payment Company Termination Fee on more than one occasion. Payment of the Company Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by Parent (x) at the time of consummation of any transaction contemplated by an Acquisition Proposal, in the case of a Company Termination Fee payable pursuant to this Section 8.02(b8.3(a)(i), (y) constitute as promptly as reasonably practicable after termination (and, in any event, within two (2) Business Days thereof), in the sole case of a Company Termination Fee payable pursuant to Section 8.3(a)(ii), and exclusive remedy of Parent (z) prior to or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to concurrently with such termination, and upon payment in the case of the a Company Termination Fee in accordance with this payable pursuant to Section 8.02(b8.3(a)(iii), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (i) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e7.1(c)(ii), then the Company shall within three pay to Parent in consideration of Parent disposing of its rights hereunder (3) Business Days after the date of such terminationother than those rights set out in Section 7.2), pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsfunds to an account designated in writing by Parent, a fee of $10,000,000 in cash (the “Company Termination Fee”), less any amounts required to be withheld or deducted on account of Taxes. (ii) If this Agreement is terminated by either Parent pursuant to Section 7.1(d)(iii), then the Company shall pay to Parent in consideration of Parent disposing of its rights hereunder (other than those rights set out in Section 7.2), by wire transfer of immediately available funds to an account designated in writing by Parent, the Company Termination Fee, less any amounts required to be withheld or deducted on account of Taxes, such payment to be made concurrently with such termination. (iii) If (A) after the date of this Agreement, a Company Alternative Proposal (substituting in the definition thereof “50%” for “20%” and for “80%” in each place each such phrase appears) is publicly proposed or publicly disclosed prior to, and is not publicly withdrawn at least two (2) Business Days prior to, the Company Stockholder Meeting (a “Company Qualifying Transaction”), (B) this Agreement is terminated by (1) the Company or Parent pursuant to Section 8.01(c7.1(b)(i) prior to the receipt of the Company Stockholder Approval or pursuant to Section 7.1(b)(iii) or by (2) Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g7.1(d)(i), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (BC) concurrently with or within twelve (12) months after such termination, the Company either (1) consummates such Takeover Proposal a Company Qualifying Transaction or (2) enters into a definitive agreement to consummate such Takeover Proposal providing for a Company Qualifying Transaction and the Company thereafter later consummates such Takeover Proposal (whether or not within such twelve (12) month period)Company Qualifying Transaction, then the Company shall upon the consummation pay to Parent in consideration of such Takeover ProposalParent disposing of its rights hereunder (other than those rights set out in Section 7.2), pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsfunds to an account designated in writing by Parent, the Company Termination Fee, less any amounts required to be withheld or deducted on account of Taxes, such payment to be made within three (3) Business Days after the consummation of such Company Qualifying Transaction. (iiiiv) Notwithstanding anything to the contrary contained herein, but without limiting the right of any party to recover liabilities or damages to the extent permitted herein, in this Agreement, Parent’s right no event shall the Company be required to receive payment of pay the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebymore than once.

Company Termination Fee. The Company shall pay to Parent the Company Termination Fee if this Agreement is terminated as follows: (i) If if this Agreement is terminated (A) by Parent pursuant to Section 8.1(d)(ii) or (B) by either the Company or Parent pursuant to Section 8.1(b)(iii) at a time when Parent could have terminated the Agreement pursuant to Section 8.1(d)(ii) unless at the time of such termination pursuant to Section 8.1(b)(iii) Parent shall have been in Willful Breach of this Agreement, then the Company shall pay to Parent the entire Company Termination Fee by the fifth (5th) Business Day following such termination; (ii) if this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e8.1(c)(iii), then the Company shall within three (3) Business Days after pay to Parent the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the entire Company Termination Fee by wire transfer of immediately available funds.upon such termination; or (iiiii) If if (A) this Agreement is terminated by either the Company or Parent (1) pursuant to Section 8.01(c8.1(d)(i) or by Parent if the breach giving rise to such termination was a Willful Breach, (2) pursuant to Section 8.01(g8.1(b)(iii) as or (3) pursuant to Section 8.1(b)(i), (B) (x) in the case of clause (1) above, a result bona fide Company Acquisition Proposal shall have been publicly announced or otherwise communicated to a member of senior management or the Board of Directors of the Company (or any Person shall have publicly announced or communicated a breach of any covenant bona fide intention, whether or agreement contained in this Agreement and (Anot conditional, to make a Company Acquisition Proposal) at any time after the date hereof of this Agreement and prior to the Company Shareholders Meeting or date of the breach giving rise to Parent’s right to terminate under Section 8.01(g)such termination, respectively(y) in the case of clause (2) above, a Takeover bona fide Company Acquisition Proposal shall have been publicly announced (or any Person shall have publicly announced or communicated a bona fide intention, whether or not conditional, to make a Company Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the stockholders of the Company at the Company Stockholders’ Meeting or (z) in the case of clause (3) above, a bona fide Company Acquisition Proposal shall have been publicly announced or publicly made known otherwise communicated to the Company Special Committee a member of senior management or the shareholders Board of Directors of the Company (or any Person shall have publicly announced an intention (or communicated a bona fide intention, whether or not conditional) , to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to Company Acquisition Proposal) at any time after the Company Shareholders Meeting or the breach, respectivelydate of this Agreement, and (BC) within twelve (12) months after the date of such termination, the Company either consummates such Takeover Proposal enters into a definitive agreement to consummate, or consummates, any Company Acquisition Transaction, then the Company shall pay to Parent the Company Termination Fee by the second (2nd) Business Day following the earlier of the date the Company enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter or consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsAcquisition Transaction. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (a) In the event that: (i) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement 7.1(b)(i), and (A) at any time a vote to obtain the Company Stockholder Approval has not been held, (B) after the date hereof of this Agreement and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, termination of this Agreement a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company shall have been made directly to its stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not conditional or withdrawn) and (C) within such twelve (12) month period), then 12 months of the date this Agreement is terminated the Company shall upon have reached a definitive agreement to consummate, or shall have consummated, a transaction contemplated by a Takeover Proposal that prior to the consummation termination of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against this Agreement was made known to the Company or its stockholders or publicly announced, in the aforesaid manner; (ii) this Agreement is terminated by either the Company or Parent pursuant to Section 7.1(b)(iii), and (A) after the date of this Agreement and prior to the termination of this Agreement a Takeover Proposal shall have been made known to the Company or shall have been made directly to its Subsidiaries stockholders generally or any Person shall have publicly announced an intention to make a Takeover Proposal (whether or not conditional or withdrawn) and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result (B) within 12 months of the failure date this Agreement is terminated the Company shall have reached a definitive agreement to consummate, or shall have consummated, a transaction contemplated by a Takeover Proposal that prior to the termination of this Agreement was made known to the Mergers Company or its stockholders or publicly announced, in the aforesaid manner; (iii) this Agreement is terminated by Parent pursuant to be consummatedSection 7.1(c)(ii); or (iv) this Agreement is terminated by the Company pursuant to Section 7.1(d)(ii); then in any such event under clause (i), (ii), (iii), or (iv) of this Section 7.3(a), the Company shall pay to Parent a termination fee of $8,625,000 in cash (the “Company Termination Fee Fee”). For purposes of Section 7.3(a)(i)(C), Section 7.3(a)(ii)(B) and Section 7.3(b) only, references in the definition of “Takeover Proposal” to “20% or more” shall be deemed to be references to “50% or more.” (b) Any payment required to be made pursuant to clause (i) or (ii) of Section 7.3(a) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by a Takeover Proposal (and in any event not later than two business days after delivery to the 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 by Parent pursuant to Section 7.1(c)(ii) (and in any event not later than two business days after delivery to the Company of notice of demand for payment); and any payment required to be made pursuant to clause (iv) of Section 7.3(a) shall be made by the Company concurrently with, and as a condition precedent to, the termination of this Agreement by the Company pursuant to Section 7.1(d)(ii). All such payments shall be made by wire transfer of immediately available fundsfunds to an account to be designated by Parent. (iiic) Notwithstanding anything to The parties acknowledge that the contrary contained in fees and the other provisions of this Section 7.3 are an integral part of the Transactions and that, without these agreements, the parties would not enter into this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (i) If In the event that this Agreement is validly terminated by Parent pursuant to Section 7.1(e) or by the Company pursuant to Section 8.01(d) or by 7.1(i), then the Company shall pay to Parent the Company Termination Fee less the amount of any Parent Expense Reimbursement previously paid to Parent pursuant to Section 8.01(e7.3(a), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the . The Company Termination Fee payable pursuant to this Section 7.3(b)(i) shall be paid by wire transfer of immediately available funds. funds to an account designated in writing by Parent no later than the second (ii2nd) Business Day following termination pursuant to Section 7.1(e) and concurrently with any termination pursuant to Section 7.1(i); provided, however, that if Parent has not provided wire information to the Company for the Company Termination Fee at least one (1) Business Day prior to the date such payment is due to Parent, then the Company Termination Fee shall be paid one (1) Business Day after such wire instructions are provided to the Company. If (A) after the Agreement Date, an Acquisition Proposal shall have become publicly known or has been publicly delivered to the Company Board and not withdrawn, (B) thereafter this Agreement is terminated (1) by either Parent or the Company or Parent pursuant to Section 8.01(c7.1(b) where the failure of Purchaser to accept shares of Company Common Stock for payment pursuant to the Offer is attributable to the failure of the Minimum Condition to be satisfied, (2) by Parent or the Company pursuant to Section 7.1(c) where the failure of Purchaser to accept shares of Company Common Stock for payment pursuant to the Offer is attributable to the failure of the Minimum Condition to be satisfied, or (3) by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g7.1(f), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (BC) within twelve (12) months after such termination, termination (x) the Company either consummates such Takeover Proposal or enters shall have entered into a definitive agreement with respect to consummate such Takeover any Acquisition Proposal and the Company thereafter consummates such Takeover Proposal or (whether or not within such twelve (12y) month period)any Acquisition Transaction shall have been consummated, then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee (less the amount of any Parent Expense Reimbursement previously paid to Parent pursuant to Section 7.3(a)) by wire transfer of immediately available fundssame-day funds on the earliest date of when such definitive agreement is executed or such transaction is consummated. (iiiii) Notwithstanding anything Subject to Section 8.8 and notwithstanding any other provision of this Agreement to the contrary contained in this Agreementcontrary, Parent’s right to receive payment each of Parent and Purchaser acknowledges and agrees on behalf of itself and its Affiliates that its receipt of the Company Termination Fee pursuant to this Section 8.02(b) 7.3(b)(i), together with the reimbursement of any applicable expenses and interest pursuant to Section 7.3(a), shall constitute the sole and exclusive remedy under this Agreement of Parent, Purchaser and the Parent Related Parties against the Company or any Company Related Party, and the receipt of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Company Termination Fee shall be deemed to be liquidated damages for any and all losses that may be or damages suffered based uponor incurred by Parent, resulting from Purchaser and the Parent Related Parties in connection with this Agreement (and the termination hereof), the Offer, Table of Contents the Merger and the other transactions contemplated hereby (and the abandonment or arising out of termination thereof) or any matter forming the circumstances giving rise to basis for such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of Parent, Purchaser or any Parent Related Party shall be entitled to bring or maintain any Legal Proceeding against the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or Company Related Party arising out of or in connection with this Agreement, the Mergers Offer, the Merger or any of the other transactions contemplated herebyhereby or thereby (or the abandonment or termination thereof) or any matters forming the basis for such termination.

Company Termination Fee. (ia) If this Agreement is validly terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c8.1(b)(ii) or by Parent pursuant to Section 8.01(g) (without the Company obtaining the Requisite Stockholder Approval or, if such termination is after the Requisite Stockholder Approval has been obtained, as a result of a willful breach of any covenant or agreement contained in this Agreement by the Company), and (Ai) at any time after the date hereof and or prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectivelytermination of this Agreement, a Takeover Proposal third Person shall have been publicly announced disclosed a bona fide Acquisition Proposal or publicly made known to management or the Company Special Committee or the shareholders of the Company Board or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover an Acquisition Proposal and (and, in each such Takeover case, such Acquisition Proposal or such intent has shall not have been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelytermination of this Agreement), and (Bii) within twelve (12) months after such terminationthe termination of this Agreement (the “Tail Period”), the Company either consummates such Takeover Proposal or enters into a definitive agreement with respect to consummate such Takeover an Acquisition Proposal and the Company thereafter consummates such Takeover Acquisition Proposal is consummated (whether or not such consummation occurs within such twelve the Tail Period) (12for the purposes of this Section 8.3, references in the definition of “Acquisition Proposal” to “15%” shall be replaced with references to “50%”); (b) month periodthe Company terminates this Agreement pursuant to Section 8.1(c)(ii), ; or (c) Parent terminates this Agreement pursuant to Section 8.1(d)(ii) or Section 8.1(d)(iii) or the Company or Parent terminates pursuant to any other provision of Section 8.1 at a time when this Agreement was terminable by Parent pursuant to Section 8.1(d)(ii) or Section 8.1(d)(iii); then the Company shall pay to Parent a termination fee equal to $1,645,000 plus reimburse Parent for its reasonable and documented third party expenses in an aggregate amount not to exceed $3,500,000 (the “Company Termination Fee”), by wire transfer of immediately available funds to one or more accounts designated in writing by Parent, (I) in the case of clause (a)(i) above, on the date on which the Company consummates the Acquisition Proposal, and (II) in the case of clauses (b) and (c) above, concurrently with such termination. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion whether or not the Company Termination Fee may be payable at the same time or at different times and/or based upon the consummation occurrence of such Takeover Proposaldifferent events. (d) Except in the case of a willful breach by the Company, pay Parent’s receipt of the Termination Fee pursuant to Section 8.3(e) shall, as liquidated damages and not as a penalty and as subject to Section 9.11, be the party’s sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result or incurred in connection with this Agreement (and the termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for the termination giving rise to payment of such Termination Fee and the failure of the Mergers Merger to be consummatedconsummated or for a breach or failure to perform hereunder. (e) The parties acknowledge that the agreements contained in this Section 8.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Company Termination Fee by wire transfer due pursuant to Section 8.3 and, to obtain such payment, Parent commences a suit that results in a judgment for the amount set forth in Section 8.3, then Parent shall also recover its reasonable costs and expenses (including reasonable attorneys’ fees) in connection with such suit and interest on the amount payable pursuant to such judgment at the interest rate per annum described as the prime lending rate in The Wall Street Journal on the date of immediately available funds. (iii) Notwithstanding anything to the contrary contained payment, with such interest being payable in this Agreement, Parent’s right to receive payment respect of the Company Termination Fee period from the date that payment was originally required to be made pursuant to this Section 8.02(b) constitute 8.3 through the sole and exclusive remedy date of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebypayment.

Company Termination Fee. The Company shall pay to Parent $1,500,000.00 (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, in the event that: (i) If (A) this Agreement is terminated (1) by Parent or the Company pursuant to Section 9.1(b)(i) (Termination Date) (provided, that (x) the conditions to the Offer set forth in clause (B)(1) of Annex A are satisfied at the time of such termination pursuant to Section 9.1(b)(i) (Termination Date), and (y) in the event such termination pursuant to Section 9.1(b)(i) (Termination Date) is a termination by the Company, the right to terminate this Agreement pursuant to Section 9.1(b)(i) (Termination Date) is then available to Parent) or (2) by Parent pursuant to Section 9.1(d)(i) (Breach of the Company’s Representations, Warranties or Covenants); (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, an Acquisition Proposal (whether or not conditional and whether or not withdrawn) shall have been made to the Company or publicly announced or shall have become publicly disclosed and, in any case, shall not have been withdrawn or otherwise abandoned (publicly withdrawn or publicly abandoned in the case of an Acquisition Proposal that was publicly announced or disclosed) prior to the date that is two (2) Business Days prior to the Expiration Time, in the case of termination pursuant to Section 9.1(b)(i)(B) or prior to the termination of this Agreement, in the case of termination pursuant to Section 9.1(d)(i); and (C) within twelve (12) months following such termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal that is later consummated or consummates an Acquisition Proposal, in which case the Company Termination Fee shall be payable within two (2) Business Days after the consummation of such Acquisition Transaction; (ii) this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii) or (Superior Proposal), in which case the Company Termination Fee shall be payable substantially concurrently with (and in any event as a condition of) such termination; or (iii) this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii)(A) or (B) (Company Board Recommendation Change; Willful Breach), in which case the Company Termination Fee shall be payable within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result . For purposes of the failure references to an “Acquisition Proposal” or an “Acquisition Transaction” in Section 9.3(c)(i), all references in the definition of the Mergers “Acquisition Transaction” to “twenty percent (20%)” and “eighty percent (80%)” shall each be deemed to be consummated, the Company Termination Fee by wire transfer of immediately available fundsreferences to “fifty percent (50%). (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.”

Company Termination Fee. (ia) If In the event that this Agreement is terminated by the Company Purchasers pursuant to Section 8.01(d8.01(g) or by Parent Seller pursuant to Section 8.01(e8.01(h), Seller shall pay to Purchasers the Company Termination Fee. The Company Termination Fee payable pursuant to this Section 8.03(a) shall be paid no later than the second (2nd) Business Day following termination pursuant to Section 8.01(g) and concurrently with any termination pursuant to Section 8.01(h). (b) In the event that: (i) this Agreement is terminated by Purchasers or Seller pursuant to Section 8.01(b) or Section 8.01(f), (ii) at or prior to the Outside Date (in the case of termination pursuant to Section 8.01(b)) or the Seller Stockholder Meeting at which the Required Stockholder Vote shall not have been obtained (in the case of termination pursuant to Section 8.01(f)), a Third Party or Seller shall have publicly disclosed that such Third Party has made, or is considering making, an Acquisition Proposal (and such Acquisition Proposal shall not have been publicly withdrawn prior to the time of the termination of this Agreement, or in the case of termination pursuant to Section 8.01(b), such Acquisition Proposal shall not have been publicly withdrawn at least ten (10) days prior to the Seller Stockholder Meeting), and (iii) if, within twelve (12) months after the date of termination of this Agreement, Seller or the Company consummates a transaction within the scope of the definition of “Acquisition Transaction” (provided that for purposes of this clause (iii), each reference in the definition of “Acquisition Transaction” to 15% shall be deemed to be a reference to 50%), then Seller shall within three (3) Business Days after the date consummation of such termination, pay Parenttransaction, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parentapplicable, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid to Purchasers, the Company Termination Fee by wire transfer of immediately available funds, an amount equal to the Company Termination Fee. (iic) If All payments under this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal 8.03 shall have been publicly announced or publicly be made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsfunds to an account designated in writing by Purchasers. (iiid) Notwithstanding anything to Seller acknowledges that the contrary agreements contained in this Section 8.03 are an integral part of this Agreement. Accordingly, Parent’s right if Seller fails to promptly pay the Company Termination Fee when due, Seller shall pay to Purchasers the Company Termination Fee and all of Purchasers’ costs and expenses (including attorneys’ fees and expenses) in connection with such claim, together with interest on the full amount of the Company Termination Fee from the date such payment was required to be made until the date of payment at the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made. (e) In the event that Purchasers shall receive payment of the Company Termination Fee pursuant to this Section 8.02(b8.03, the receipt of such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Purchasers or any of their Affiliates in connection with this Agreement (and the termination hereof), the transactions contemplated by this Agreement (and the abandonment thereof) constitute or any matter forming the sole basis for such termination, and exclusive remedy neither Purchasers nor any of Parent their Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Seller or any of its Affiliates against the Company, or any of its Affiliates Subsidiaries or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyby this Agreement or any matters forming the basis for such termination.

Company Termination Fee. (i) If this Agreement is terminated by Parent pursuant to Section 10.01(c)(i), then the Company shall pay an amount equal to $32,165,000 (the “Company Termination Fee”) to Parent in immediately available funds within two (2) Business Days after such termination. (ii) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e10.01(d)(i), then the Company shall within three pay the Company Termination Fee to Parent in immediately available funds substantially concurrently with (3and as a condition to) Business Days such termination. (iii) If (A) after the date of such terminationthis Agreement, pay Parenta bona fide Acquisition Proposal shall have been publicly made, as liquidated damages and not as a penalty and as publicly announced or otherwise communicated to the sole and exclusive remedy Board of Parent, Merger Sub I and Merger Sub II against Directors of the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss to the Company or damage suffered as a result shall have been made directly to the stockholders of the failure of the Mergers to be consummatedCompany generally (and in, the Company Termination Fee by wire transfer of immediately available funds. any such case, such Acquisition Proposal is not withdrawn), (iiB) If thereafter, this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c10.01(b)(i) (at a time when Parent could have terminated this Agreement pursuant to such provision), Section 10.01(b)(iii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g10.01(c)(ii), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (BC) within twelve (12) months after such termination, the Company either consummates such Takeover any Acquisition Proposal or enters into a definitive agreement to consummate such Takeover in respect of any Acquisition Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period)that is later consummated, then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer of immediately available fundssame-day funds on the date of consummation of such Acquisition Proposal. For purposes of this Section 10.02(b), all references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”. (iiiiv) Notwithstanding anything In no event shall the Company be required to the contrary contained in this Agreement, Parent’s right to receive payment of pay the Company Termination Fee on more than one occasion. (v) Parent and Merger Subsidiary agree that, upon any termination of this Agreement under circumstances where the Company Termination Fee is payable by the Company pursuant to this Section 8.02(b) constitute and such Company Termination Fee is paid in full, except in the sole case of fraud or a willful and exclusive material breach of the Company’s representations, warranties, covenants or agreements set forth in this Agreement prior to termination of this Agreement, Parent and Merger Subsidiary shall be precluded from any other remedy of Parent or any of its Affiliates against the Company, at law or in equity or otherwise, and neither Parent nor Merger Subsidiary shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of its Affiliates the Company’s Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders stockholders or Affiliates or their respective Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance connection with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement or the other transactions contemplated hereby. (vi) Each of the Company and Parent acknowledges that the agreements contained in this Section 10.02(b) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other party would not enter into this Agreement. If the Company fails promptly to pay any amounts due pursuant to Section 10.02(b), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the amounts set forth in Section 10.02(b), the Company shall pay to Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amounts set forth in Section 10.02(b) from the date of termination of this Agreement at a rate per annum equal to the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.

Company Termination Fee. (ia) If Parent terminates this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e7.1(b)(ii), then the Company shall within three (3) Business Days pay to Parent promptly, but in no event later than two business days after the date of such termination, pay Parenta termination fee of $2,500,000 in cash (the “Company Termination Fee”) and shall reimburse Parent for its reasonable out-of-pocket expenses in connection with this Agreement and the Transactions in an amount not to exceed $500,000 (the “Expense Reimbursement Amount”). (b) If the Company terminates this Agreement pursuant to Section 7.1(b)(iii), as liquidated damages prior to and not as a penalty and as condition to the sole and exclusive remedy effectiveness of Parentsuch termination, Merger Sub I and Merger Sub II against the Company shall pay to Parent the Company Termination Fee and its Subsidiaries and any of their respective Affiliates, shareholders the Expense Reimbursement Amount. (c) If (i) Parent or Representatives for any loss or damage suffered the Company terminates this Agreement pursuant to Section 7.1(b)(i)(B) as a result of the failure to satisfy the Minimum Condition, and (ii) following the execution and delivery of this Agreement and prior to the Mergers termination of this Agreement, a Takeover Proposal (whether or not a continuation or renewal of, or otherwise relating to, any Takeover Proposal that was publicly announced or became publicly known prior to be consummatedthe execution and delivery of this Agreement) shall have been publicly announced or shall have become publicly known and not publicly withdrawn, and (iii) concurrently with, or within 12 months following such termination, the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Takeover Proposal, then, the Company shall pay to Parent the Company Termination Fee and the Expense Reimbursement Amount promptly following the earlier of the execution of the definitive agreement with respect to, or the consummation of, any transaction contemplated by any Takeover Proposal (and in any event not later than two business days after receipt by the Company of notice of demand for payment from Parent delivered in accordance with Section 8.9). (d) The Company Termination Fee and the Expense Reimbursement Amount shall be paid by wire transfer of immediately available fundsfunds to an account designated in writing by Parent. (iie) If this Agreement is terminated by either The Company acknowledges that the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement agreements contained in this Section 7.3 are an integral part of the Transactions contemplated by this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g)that without these agreements, respectively, a Takeover Proposal shall Parent would not have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters entered into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsthis Agreement. (iiif) Notwithstanding anything Subject to and without limiting in any way the contrary contained in this Agreementprovisions of Section 7.2, Parent’s right to receive the parties hereto agree that payment of the Company Termination Fee and the Expense Reimbursement Amount shall be Parent and Purchaser’s exclusive remedy for any termination of this Agreement pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the 7.1 under circumstances giving rise to such termination, and upon payment of where the Company Termination Fee in accordance with and the Expense Reimbursement Amount are payable under this Section 8.02(b), none of 7.3 and that Parent and Purchaser shall have no further recourse against the Company for, or any of its Affiliates or any of their respective partnersas a result of, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebysuch termination.

Company Termination Fee. (i) If (A) this Agreement is validly terminated by the Company pursuant to Section 8.01(d8.1(d) or by Parent Section 8.1(e); (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 8.01(e8.1(d) or Section 8.1(e) an Acquisition Proposal or Inquiry for an Acquisition Transaction has been publicly announced or disclosed and not withdrawn or otherwise abandoned or an Acquisition Proposal has otherwise become known, disclosed or communicated to the Company Board (or a committee thereof); and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 8.1(d) or Section 8.1(e), either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction and such Acquisition Transaction is subsequently consummated, then the Company shall within three (3) Business Days after the date of substantially concurrently with such termination, consummation pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), all references to “20%” in the definition of “Acquisition Transaction” will be deemed to be references to “50%”. (ii) If this Agreement is validly terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period8.1(f), then the Company shall upon the consummation of must promptly (and in any event within two (2) Business Days) following such Takeover Proposaltermination pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, to Parent the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iii) Notwithstanding anything If this Agreement is validly terminated pursuant to Section 8.1(h), then the contrary contained in this AgreementCompany must substantially concurrently with such termination pay, Parent’s right or cause to receive payment of be paid, to Parent the Company Termination Fee pursuant by wire transfer of immediately available funds to this Section 8.02(ban account or accounts designated in writing by Parent; provided, that if (A) constitute such termination occurs prior to the sole Cut-Off Date and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of (B) the Company has entered into a definitive Alternative Acquisition Agreement to consummate an Acquisition Transaction at the time of such termination with an Excluded Party, then the “Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Fee” shall have any further liability or obligation relating mean an amount equal to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby$30,600,000.

Company Termination Fee. The Company would be required to pay a termination fee of $181,500,000.00, which we refer to as the “Company Termination Fee,” to Parent if the Merger Agreement is terminated: • pursuant to a Superior Proposal Termination; ​ • pursuant to an Adverse Recommendation Change Termination; or ​ • if (iA) If following the date of the Merger Agreement, a Takeover Proposal will have been publicly made or otherwise become generally known to the public and has not been subsequently withdrawn, (B) thereafter the Merger Agreement is terminated by (1) the Company or Parent pursuant to a Termination Date Termination and at such time all of the Offer conditions (other than the Minimum Tender Condition and the Offer conditions that by their terms are to be satisfied at the Offer closing, but subject to such conditions being able to be satisfied), have been satisfied or waived ​ TABLE OF CONTENTS (subject to certain requirements set forth in the Merger Agreement), (2) the Company or Parent, pursuant to a Minimum Tender Condition Termination (subject to certain requirements set forth in the Merger Agreement), or (3) Parent pursuant to a Company Breach Termination, and (C) within 12 months following the date of such termination, the Company enters into a definitive agreement with respect to any transaction specified in the definition of “Takeover Proposal” and such Takeover Proposal is subsequently consummated. For purposes of this clause, the references in the definition of the term “Takeover Proposal” to the figure “25%” will be deemed to be replaced by “50%”. The Company Termination Fee is payable prior to or concurrently with termination of the Merger Agreement in the event of a Superior Proposal Termination, and, in all other cases, within two business days after the date of the event giving rise to the obligation to pay the Company Termination Fee. Parent would be required to pay a termination fee of $594,000,000.00, which we refer to as the “Parent Termination Fee,” to the Company if the Merger Agreement is terminated: • pursuant to a Parent Breach Termination; ​ • pursuant to a Failure to Close Termination; ​ • pursuant to an Offer Change Termination; or ​ • if the Merger Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e), a Termination Date Termination and if the Company shall would have been entitled to terminate the Merger Agreement pursuant to a Parent Breach Termination, a Failure to Close Termination or an Offer Change Termination. ​ The Parent Termination Fee is payable within three (3) Business Days two business days after the date of such termination, the event giving rise to the obligation to pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Parent Termination Fee. If the Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or (i) Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to when the Company Shareholders Meeting or the breach giving rise to Parent’s right would have been entitled to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such terminationMerger Agreement, the Company either consummates such Takeover Proposal will be entitled to receipt of any Parent Termination Fee that would have been (or enters into a definitive agreement to consummate such Takeover Proposal and would have subsequently become) payable had the Company thereafter consummates terminated the Merger Agreement at such Takeover Proposal time or (whether or not within such twelve (12ii) month period), then the Company at any time when Parent would have been entitled to terminate the Merger Agreement, Parent shall upon the consummation be entitled to receipt of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsthat would have been (or would have subsequently become) payable had Parent terminated the Merger Agreement at such time. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. In consideration of the financial accommodations theretofore made, and to be made hereafter by Buyer to the Company in accordance with the Letter of Intent, the Company shall (ia) If pay to Buyer a termination fee (the “Company Termination Fee”) of Two Hundred and Fifty Thousand Dollars ($250,000) as liquidated damages; (b) reimburse Buyer for all expenses incurred by Buyer in connection with the entering into this Agreement and the carrying out of any and all acts contemplated hereunder, up to an aggregate maximum amount of One Hundred Thousand Dollars ($100,000) (the “Buyer Expense Fee”); (c) immediately repay to Buyer all amounts theretofore advanced by Buyer to or for the benefit of Company; and (d) grant to Buyer an exclusive, two year, royalty free license to the Product with the right to sublicense the Product to end-users in the United States of America, Mexico and Canada in the event that this Agreement is terminated by the Company as follows: (i) if Buyer shall terminate this Agreement pursuant to Section 8.01(d) 7.1.4, 7.1.6, or by Parent pursuant to Section 8.01(e), 7.1.7 (other than because a representation or warranty of the Company shall within three (3) Business Days after became untrue between the date of such termination, pay Parent, as liquidated damages hereof and not as a penalty and the Closing as the sole and exclusive remedy result of Parent, Merger Sub I and Merger Sub II against an event or condition over which the Company and was unable, in the exercise of its Subsidiaries and any of their respective Affiliatesreasonable commercial efforts, shareholders to exercise control or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result because of a breach of any a covenant or agreement contained of the Company that the Company was unable to prevent in this Agreement and the exercise of its reasonable commercial efforts); or (ii) if (A) either party shall terminate this Agreement pursuant to Section 7.1.2 and, at any time after the date hereof Agreement Date and prior before the termination of this Agreement, an Acquisition Proposal with respect to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced made, proposed or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or communicated and not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, following the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out termination of this Agreement, the Mergers Company consummates any Acquisition Proposal or enters into an agreement, understanding (including a letter of intent) with respect to any Acquisition Proposal which is subsequently consummated. Any Company Termination Fee payable under this provision shall be payable as liquidated damages to compensate Buyer for the other transactions contemplated herebydamages Buyer will suffer if this Agreement is terminated in the circumstances set forth in this Section 7.2.2, which damages cannot be determined with reasonable certainty. It is specifically agreed that any Company Termination Fee to be paid pursuant to this Section 7.2.2 represents liquidated damages and not a penalty.

Company Termination Fee. If: (ia) If (A)(x) this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e7.4(a), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s such right to terminate under Section 8.01(g), respectivelyof termination, a Takeover Company Acquisition Proposal has been publicly announced, publicly disclosed or otherwise communicated to the Company Board or any Person shall have been publicly announced or publicly made known otherwise communicated to the Company Special Committee Board an intention (whether or the shareholders of not conditional) to make such a Company Acquisition Proposal (and such Company Acquisition Proposal has not been withdrawn prior to such breach), or (y) this Agreement is terminated by Company or Parent pursuant to Section 7.2(c)(i), and prior to the Company Stockholder Meeting, a Company Acquisition Proposal has been publicly announced, publicly disclosed or otherwise publicly communicated to Company’s stockholders, or any Person shall have publicly announced an intention (whether or not conditional) to make such a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelyAcquisition Proposal, and (B) within twelve (12) 12 months after the date of such termination, the a transaction in respect of a Company either consummates such Takeover Acquisition Proposal is consummated or Company enters into a definitive agreement in respect of a Company Acquisition Proposal that is later consummated; provided that for all purposes of this Section 7.5(b)(i), all percentages included in the definition of “Company Acquisition Proposal” increased to consummate such Takeover Proposal and 50%; (b) this Agreement is terminated by Parent pursuant to Section 7.4(c); or (c) this Agreement is terminated by the Company thereafter consummates pursuant to Section 7.3(b); then, in any such Takeover Proposal event, Company shall pay to Parent the Company Termination Fee, it being understood that in no event shall Company be required to pay the Company Termination Fee on more than one occasion. Payment of the Company Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by Parent (whether or not within such twelve (12A) month periodat the time of consummation of any transaction contemplated by a Company Acquisition Proposal, in the case of a Company Termination Fee payable pursuant to Section 7.5(b)(i), then (B) as promptly as reasonably practicable after termination (and, in any event, within two business days thereof), in the case of a Company Termination Fee payable pursuant to Section 7.5(b)(ii), and (C) at the time of termination, in the case of a Company Termination Fee payable pursuant to Section 7.5(b)(iii). Other than with respect to fraud or Willful Breach, in the event that the Company Termination Fee becomes payable, then payment to Parent of the Company Termination Fee shall upon the consummation of such Takeover Proposal, pay be Parent, as liquidated damages and not as a penalty and as the ’s sole and exclusive remedy as liquidated damages for any and all losses or damages of Parent, Merger Sub I and Merger Sub II any nature against the Company and Company, its Subsidiaries and any each of their respective Affiliatesformer, shareholders current and future directors, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or Representatives future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing (collectively, the “Company Parties”) in respect of this Agreement, any agreement executed in connection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the failure of the Mergers to be consummatedconsummated or for a breach or failure to perform hereunder (whether intentionally, the Company Termination Fee by wire transfer of immediately available funds. (iiiunintentionally or otherwise) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such terminationotherwise, and upon payment of the such Company Termination Fee in accordance with this Section 8.02(b)Fee, none of the no Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Party shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement or the other transactions contemplated herebyhereby and thereby.

Company Termination Fee. (i) If Prior and as a condition to a termination of this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e9.1(g), the Company shall tender to Parent (and pay to Parent if Parent agrees to accept such payment) a fee equal to Four Million, Eight Hundred and Fifty Seven Thousand, Nine Hundred Sixty Five Dollars ($4,857,965) (the “Company Termination Fee”) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. (ii) In the event that this Agreement is terminated pursuant to either Sections 9.1(i) or 9.1(j), within three (3) one Business Days Day after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against demand by Parent the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as shall pay to Parent a result of the failure of the Mergers fee equal to be consummated, the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent. (iiiii) If this Agreement is terminated by either The Company shall pay to Parent a fee equal to the Company Termination Fee, by wire transfer of immediately available funds to an account or Parent pursuant to Section 8.01(c) or accounts designated in writing by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained Parent, within one Business Day after demand by Parent, in this Agreement and the event that (A) at any time after the date hereof execution and prior to the Company Shareholders Meeting delivery of this Agreement, an offer or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, proposal for a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention Competing Acquisition Transaction (whether or not conditional) shall be publicly announced, shall become publicly known or shall be otherwise communicated to make senior management of the Company or the Company Board (it being understood and agreed that any amendment or other alteration to, or re-proposal of, an offer or proposal for a Takeover Proposal and such Takeover Proposal Competing Acquisition Transaction that was publicly announced or such intent has not been publicly withdrawn known, or repudiated by such Person otherwise communicated to senior management of the Company or the Company Board, prior to the Company Shareholders Meeting execution and delivery of this Agreement shall constitute an offer or the breachproposal for a new Competing Acquisition Transaction for purposes of this Section 9.4(a)(iii)), respectively(B) this Agreement is terminated pursuant to Sections 9.1(b) or Section 9.1(c), and (BC) within twelve (12) months after such terminationfollowing the termination of this Agreement pursuant to Section 9.1(b) or Section 9.1(c), the Company either consummates such Takeover Proposal or enters into a definitive agreement in respect of any Competing Acquisition Proposal, or recommends or submits a Competing Acquisition Proposal to consummate such Takeover its stockholders for adoption, or a transaction in respect of any Competing Acquisition Proposal is consummated, which, in each case, need not be the same Competing Acquisition Proposal that was made, disclosed or communicated after the execution and delivery of this Agreement and prior to termination hereof. (iv) The parties hereto acknowledge and hereby agree that in no event shall the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, be required to pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreementon more than one occasion, Parent’s right to receive payment of whether or not the Company Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events. (v) Parent shall be entitled to pursue a claim against the Company, either at law or in equity, arising out of this Agreement and the transactions contemplated hereby concurrently with a claim against the Company seeking to obtain the Company Termination Fee, provided, however, that in the event that Parent shall accept or be awarded the Company Termination Fee in full pursuant to this Section 8.02(b) constitute the sole and exclusive remedy 9.4(a), then receipt of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives such fee shall be deemed to be liquidated damages for any and all losses that may be or damages suffered based uponor incurred by Parent, resulting from Merger Sub, any of their respective Affiliates or arising out of any other Person in connection with this Agreement (and the circumstances giving rise to termination hereof), the transactions contemplated hereby (and the abandonment thereof) or any matter forming the basis for such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of Parent, Merger Sub, 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. Upon payment of their respective partnerssuch Company Termination Fee, members, shareholders or Representatives the Company shall have any no further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement or the other transactions contemplated hereby.

Company Termination Fee. (ia) If this Agreement is validly terminated by Buyer or the Company pursuant to Section 8.01(d‎Section 10.01(i), then the Company shall pay to Buyer (or one or more of its designees) an amount in cash equal to $25 million in immediately available funds (the “Company Epoxy Termination Fee”) within two Business Days after such termination. If this Agreement is validly terminated by Buyer or the Company pursuant to ‎Section 10.01(i) or by Parent Buyer pursuant to Section 8.01(e‎Section 10.01(h), then the Company shall pay to Buyer (or one or more of its designees) an amount in cash equal to $87,887,500 in immediately available funds (the “Company Change of Recommendation Termination Fee” and together with the Company Epoxy Termination Fee, the “Company Termination Fees” and each a “Company Termination Fee”) within three (3) two Business Days after the date of such termination, pay Parent, as . Any payment of a Company Termination Fee shall be deemed to be liquidated damages and not as a penalty penalty, and as in no event shall the Company be required to pay (x) either of the Company Termination Fees on more than one occasion or (y) both of the Company Termination Fees on any occasion. (b) Notwithstanding anything to the contrary herein or in any other Transaction Document, (i) in the event that a Company Termination Fee is payable under ‎Section 10.04(a), Buyer’s receipt of such Company Termination Fee in full shall be the sole and exclusive remedy of Parent, Merger Sub I the Buyer and Merger Sub II the Buyer Related Parties against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives Related Parties for any loss or damage Damages suffered as a result of the failure of the Mergers Closing to be consummatedconsummated or for a breach or failure to perform hereunder, and neither the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the nor any Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Related Party shall have any further liability or obligation Liability (including with respect to any other Company Termination Fee) to any Person relating to or arising out of this Agreement, the Mergers Agreement or the Contemplated Transactions, and the Company Related Parties shall be deemed to have waived all other remedies (including equitable remedies) with respect to any and all Damages or Liabilities suffered or incurred in connection with this Agreement or the Contemplated Transactions and (ii) the maximum aggregate Liability of the Company and the Company Related Parties, taken as a whole, under or in connection with this Agreement and the Contemplated Transactions shall be limited to an amount equal to the amount of such Company Termination Fee, and in no event shall any of Buyer or the Buyer Related Parties seek to recover, or be entitled to recover, any Damages or other losses or damages of any kind, character or description in excess of such amount (including to any other Company Termination Fee); provided that the foregoing shall not limit the ability of Buyer to recover reimbursement costs and expenses or interest pursuant to ‎Section 10.04(c) and any such reimbursement, indemnification or interest shall not reduce the amount of such Company Termination Fee; and provided, further, that nothing in this Section 10.04(b) shall restrict (A) the availability to Buyer of any remedies in connection with actual fraud or (B) Buyer’s entitlement to seek and obtain specific performance as and to the extent permitted by ‎Section 12.08. (c) The Company acknowledges that the agreements contained in this ‎Section 10.04 are an integral part of the transactions contemplated herebyby this Agreement and that, without these agreements, Buyer would not enter into this Agreement. Accordingly, if the Company fails promptly to pay a Company Termination Fee when due pursuant to this ‎Section 10.04, it shall pay any reasonable and documented out-of-pocket costs and expenses incurred by Buyer in connection with enforcing this Agreement to obtain payment of such unpaid fee (including by legal action), together with interest on the amount of such unpaid fee at a rate per annum equal to 2% from the date such fee was required to be paid to (but excluding) the payment date.

Company Termination Fee. The Company agrees that the Company shall pay to Parent an amount equal to $1,500,000 (the “Company Termination Fee”) if this Agreement is validly terminated pursuant to: (i) If Section 9.01(b) by Parent or the Company and at any time after the date of this Agreement is terminated by and before its termination any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, within nine months following the termination of this Agreement; (ii) Section 9.01(e) by Parent or the Company and at any time after the date of this Agreement and before the vote on this Agreement at the Company Stockholders Meeting any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, within nine months following the termination of this Agreement; (iii) Section 9.01(f) by Parent if the Company has knowingly and willfully breached its representations, warranties, covenants or agreements set forth in this Agreement; (iv) Section 9.01(g)(i) or Section 9.01(g)(iii); (v) Section 9.01(g)(ii) and at any time after the date of this Agreement and before its termination any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to that Acquisition Proposal, or that Acquisition Proposal is consummated, within twelve months following the termination of this Agreement; (vi) Section 9.01(h) and at any time after the date of this Agreement and before the vote on this Agreement at the Company Stockholders Meeting any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, within nine months following the termination of this Agreement; or (vii) Section 9.01(j). If the Company Termination Fee is payable pursuant to Section 8.01(d9.03(b)(iii), Section 9.03(b)(iv) or by Parent pursuant to Section 8.01(e9.03(b)(vii), the Company Termination Fee shall within three (3) Business Days after be paid by the Company as directed by Parent in writing in immediately available funds on the date of such termination, pay termination of this Agreement by the Company or as soon as is reasonably practicable following the date of termination of this Agreement by Parent, but in any event no more than two Business Days following such date. If the Company Termination Fee is payable pursuant to Section 9.03(b)(i), Section 9.03(b)(ii), Section 9.03(b)(v) or Section 9.03(b)(vi), the Company Termination Fee shall be paid by the Company as liquidated damages and not as a penalty and as directed by Parent in writing in immediately available funds on the date of consummation of the relevant Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, if this Agreement may be terminated under circumstances where the Company Termination Fee would be payable pursuant to this Section 9.03(b), the payment of the Company Termination Fee (plus the amounts payable under Section 9.03(d), if any) shall be the sole and exclusive remedy of Parent, Merger Sub I Parent and Merger Sub II MergerSub against the Company and its Subsidiaries and any of their respective Affiliatesformer, shareholders current, or Representatives future general or limited partners, stockholders, managers, members, directors, officers, affiliates or agents (each of the foregoing, the “Company Related Parties”) for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a any breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives consummated for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such terminationreason, and upon payment of by the Company Termination Fee of such amounts due in accordance with this Section 8.02(b)Agreement, none of the Company Company, its Subsidiaries or any of its Affiliates or any of their respective partners, members, shareholders or Representatives the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement (or the other termination of this Agreement) or the transactions contemplated herebyby this Agreement (or the abandonment thereof) other than with respect to the Confidentiality Agreement. Notwithstanding the foregoing, nothing contained in this Section 9.03(b) shall restrict Parent’s or MergerSub’s rights to seek specific performance pursuant to the terms of Section 10.06. For purposes of Section 9.03(b)(i), Section 9.03(b)(ii), Section 9.03(b)(v) and Section 9.03(b)(vi), references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50.1%.”

Company Termination Fee. The Company shall pay to Parent $27,293,938 (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, in the event that: (i) If (A) this Agreement is terminated (1) by Parent or the Company pursuant to Section 9.1(b)(i) (Termination Date; Offer Expiration) and the Minimum Condition has not been satisfied prior to such termination (provided, that (x) the conditions to the Offer set forth in clauses (A) and (C)(1) of Annex A are satisfied at the time of such termination pursuant to Section 9.1(b)(i) (Termination Date), and (y) with respect to such termination by the Company, the right to terminate this Agreement pursuant to Section 9.1(b)(i) (Termination Date) is then available to Parent or (2) by Parent pursuant to Section 9.1(d)(i) (Breach of the Company’s Representations, Warranties or Covenants); (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, a bona fide Acquisition Proposal (whether or not conditional and whether or not withdrawn) shall have been made to the Company or publicly announced or shall have become publicly disclosed and, in any case, shall not have been withdrawn or otherwise abandoned (publicly withdrawn or publicly abandoned in the case of an Acquisition Proposal that was publicly announced or disclosed) prior to the date that is two (2) Business Days prior to the Expiration Time, in the case of termination pursuant to Section 9.1(b)(i)(B) or prior to the termination of this Agreement, in the case of termination pursuant to Section 9.1(d)(i); and (C) within twelve (12) months following such termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or consummates an Acquisition Proposal, in which case the Company Termination Fee shall be payable substantially concurrently with the entry into such definitive agreement or the consummation of such Acquisition Transaction, as applicable; (ii) this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii) or (Superior Proposal), in which case the Company Termination Fee shall be payable substantially concurrently with such termination; or (iii) this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii) (Company Board Recommendation Change), in which case the Company Termination Fee shall be payable within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result . For purposes of the failure references to an “Acquisition Proposal” or an “Acquisition Transaction” in Section 9.3(c)(i), all references in the definition of the Mergers “Acquisition Transaction” to “twenty percent (20%)” and “eighty percent (80%)” shall each be deemed to be consummated, the Company Termination Fee by wire transfer of immediately available fundsreferences to “fifty percent (50%). (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.”

Company Termination Fee. If: (i) If Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e9.1(d), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds.; or (ii) If this Agreement is terminated by either the Company or Parent shall terminate this Agreement pursuant to Section 8.01(c9.1(b)(ii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Stockholder Meeting or but after the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover date hereof an Acquisition Proposal shall have been publicly announced or publicly made known to the Company Special Committee (including any of its agents or the shareholders representatives) and communicated publicly or to any substantial number of stockholders of the Company or shall have been made directly to the stockholders of the Company by any Person or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover an Acquisition Proposal; or (iii) after the date hereof, an Acquisition Proposal and such Takeover Proposal or such intent has not by any Person shall have been publicly withdrawn or repudiated by such Person prior made known to the Company Shareholders Meeting (including any of its agents or the breach, respectively, representatives) and (B) within twelve (12) months after such termination, communicated publicly or to any substantial number of stockholders of the Company either consummates such Takeover Proposal or enters into a definitive agreement shall have been made directly to consummate such Takeover Proposal and the stockholders of the Company thereafter consummates such Takeover Proposal by any Person, or any Person shall have publicly announced an intention (whether or not within such twelve conditional) to make an Acquisition Proposal, and thereafter this Agreement is terminated pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained; then in any case as described in clause (12) month periodi), then (ii), or (iii) the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee Parent (by wire transfer of immediately available funds. ) (iiix) Notwithstanding anything $250,000,000 not later than the date of termination of this Agreement and (y) an additional $250,000,000 if and not later than the date an Acquisition Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as such Acquisition Proposal is consummated or such definitive agreement is executed within 12 months after the date of termination of this Agreement; provided, however, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%. The Company acknowledges that the contrary agreements contained in this Section 10.5 are an integral part of the transactions contemplated by this Agreement, Parent’s right to receive payment of and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company Termination Fee fails to pay timely any amount due pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of 10.5 and, in order to obtain such payment, Parent or any of its Affiliates commences a suit which results in a judgment against the CompanyCompany for the amount payable to Parent pursuant to this Section 10.5, or any of the Company shall pay to Parent its Affiliates or any of their respective partnerscosts and expenses (including attorneys’ fees and expenses) in connection with such suit, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out together with interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as of the circumstances giving rise date such payment was required to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating be made pursuant to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby) plus three percent (3%).

Company Termination Fee. (i) If In the event this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii), the Company shall pay the Company Termination Fee to Parent prior to such termination by wire transfer of same day funds to one or more accounts designated by Parent. (ii) or In the event this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii), the Company shall pay the Company Termination Fee to Parent promptly, but in any event within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundssame day funds to one or more accounts designated by Parent. (iiiii) If In the event that (A) (x) this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c9.1(b) and at or prior to the time of such termination an Acquisition Proposal shall have been publicly disclosed, announced or commenced and not in good faith withdrawn prior to the time of such termination, or (y) this Agreement is terminated by Parent pursuant to Section 8.01(g9.1(d)(i) as a result and at or prior to the time of a breach such termination an Acquisition Proposal shall have been publicly disclosed, announced or commenced or submitted or made known to the Company Board and not in good faith withdrawn prior to the time of any covenant or agreement contained in this Agreement such termination, and (AB) at any time after the date hereof execution of this Agreement and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders expiration of the Company or any Person shall have publicly announced an intention twelfth (whether or not conditional12th) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to month after the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such terminationtermination of this Agreement, the Company either consummates such Takeover any Acquisition Proposal or enters into a definitive agreement to consummate such Takeover Proposal and any Alternative Acquisition Agreement for an Acquisition Proposal, the Company thereafter consummates such Takeover shall, on the date any Acquisition Proposal is consummated, pay the Company Termination Fee (whether less the amount of any Reimbursable Expenses previously paid pursuant to Section 9.4(c)) to Parent by wire transfer of same day funds to one or not within such twelve (12) month periodmore accounts designated by Parent; provided that, for purposes of this Section 9.4(b)(iii), then all percentages in the definition of Acquisition Proposal shall be replaced with 50%. (iv) For the avoidance of doubt, in no event shall the Company shall upon the consummation of such Takeover Proposalbe obligated to pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything on more than one occasion. Parent shall have the right to assign the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the one or more Persons in its sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebydiscretion.

Company Termination Fee. (i) If this Agreement is (i) terminated (A) by the Company pursuant to Section 8.01(d7.1(d) (Superior Proposal), or (B) by Parent pursuant to Section 8.01(e7.1(e) (Adverse Recommendation), or (ii) (A) by Parent or the Company pursuant to Section 7.1(c) (No Vote), (B) following the execution of this Agreement and prior to the time at which a vote is taken on the adoption of this Agreement at the Shareholders Meeting (or an adjournment or postponement thereof) an Acquisition Proposal is publicly announced or shall become publicly known and not withdrawn (a "Competing Acquisition Proposal"), and (C) within twelve (12) months following the termination of this Agreement pursuant to Section 7.1(c), the foregoing Competing Acquisition Proposal is consummated or the Company enters into a definitive Contract to consummate the foregoing Competing Acquisition Proposal and such Competing Acquisition Transaction is subsequently consummated, the Company shall promptly, and in any event within three five (35) Business Days after the date of such terminationtermination (except as provided in the proviso below), pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee (less the amount of Parent Expenses previously paid to Parent pursuant to Section 7.2(c), if any) by wire transfer of immediately available funds. funds (it being understood and agreed that Parent shall provide the Company with the applicable account information promptly upon request therefor); provided that, in the case of a termination pursuant to clause (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal such payment shall have been publicly announced or publicly be made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon substantially concurrently with the consummation of such Takeover Competing Acquisition Proposal; provided, pay Parentfurther, as liquidated damages and not as a penalty and as that, for the sole and exclusive remedy purpose of Parentclause (ii), Merger Sub I and Merger Sub II against each reference to 20% in the definition of Acquisition Proposal shall be replaced with 50%. For the avoidance of doubt, in no event shall the Company and its Subsidiaries and any of their respective Affiliatesbe obligated to pay, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, the Company Termination Fee by wire transfer on more than one occasion, whether or not the Company Termination Fee may be payable under more than one provision of immediately available funds. (iii) Notwithstanding anything this Agreement at the same or at different times and the occurrence of different events. If the Company becomes obligated to the contrary contained in this Agreement, Parent’s right to receive payment of pay the Company Termination Fee pursuant to this Section 8.02(b) constitute 7.2(b), Parent and Merger Sub agree that Parent's right to receive the Company Termination Fee from the Company shall be Parent's and Merger Sub's sole and exclusive remedy of Parent or any of its Affiliates against the CompanyCompany and the Company Group and, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b)Fee, none neither the Company nor any member of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Group shall have any further liability or obligation to Parent or Merger Sub relating to or arising out of this Agreement, the Mergers Agreement or the other transactions contemplated hereby.

Company Termination Fee. (i) If (A) (1) this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e7.1(c), the Company shall within three (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated pursuant to Section 7.1(i), or (3) Parent terminates this Agreement pursuant to Sections 7.1(e), (B) (1) an Acquisition Proposal is publicly disclosed (whether by either the Company or Parent pursuant to Section 8.01(ca third party) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or otherwise publicly made known to the Company Special Committee Board or the shareholders Company Stockholders and in each case is not publicly withdrawn prior to the date of any such termination (but in the case of the preceding clause (A)(2), even if publicly withdrawn, such public withdrawal was at least three (3) business days prior to the applicable Expiration Date) in any case of the preceding clause (A), or (2) solely in case of any of the preceding clauses (A)(1) or (A)(3), a non-public Acquisition Proposal has been made to the Company Board or any Person shall have publicly announced has privately disclosed or communicated to the Company Board an intention (whether or not conditional) to make a Takeover an Acquisition Proposal and such Takeover Proposal or such intent which has not been publicly withdrawn or repudiated by (publicly, if public) at the time of such Person prior to the Company Shareholders Meeting or the breach, respectivelytermination, and (BC) within twelve (12) months after such the applicable termination, (1) the Company either consummates such Takeover Board publicly recommends in writing that stockholders vote in favor of, or tender their shares into, any Acquisition Proposal or enters (2) the Company shall have entered into a definitive agreement with respect to consummate such Takeover Proposal and or consummated any Acquisition Proposal, then the Company thereafter consummates shall pay to Parent or its designee an amount equal to $86,100,000 in cash (the “Company Termination Fee”) in immediately available funds concurrently with the earliest to occur of such Takeover Proposal recommendation, such entry into such definitive agreement or such consummation of such Acquisition Proposal; it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. For purposes of this Section 7.3(b)(i), all references to “15%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%.” (whether ii) If the Parent terminates this Agreement pursuant to Section 7.1(f) or not within such twelve (12) month periodif the Company terminates this Agreement pursuant to Section 7.1(h), then the Company shall upon the consummation of such Takeover Proposalmust prior to or concurrently with, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parentcondition to, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers such termination pay to be consummated, Parent the Company Termination Fee by wire transfer of immediately available fundsFee. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (i) If In the event that this Agreement is terminated by the Company pursuant to Section 8.01(d11.01(c) (unless at or by Parent pursuant prior to Section 8.01(e), the Company shall within three (3) Business Days after the date time of such termination, pay Parentthere has been a Change in Recommendation) or Section 11.01(e), as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against then the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, shall pay SPAC the Company Termination Fee. Any Company Termination Fee due under this Section 11.03 shall be paid by wire transfer of immediately available funds. (ii) If this Agreement is terminated funds to an account provided in writing by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior SPAC to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g)Company, respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders within five (5) business days of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breachtermination date. For purposes of this Agreement, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the “Company Termination Fee by wire transfer of immediately available funds. (iii) Fee” means $7,500,000. Notwithstanding anything to the contrary contained in this Agreement, Parent’s right each of the Company, SPAC, and the other SPAC Parties acknowledges and agrees that in the event that SPAC is entitled to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) 11.03, the right of SPAC to receive such amount shall constitute the sole and exclusive remedy for, and such amount shall constitute liquidated damages in respect of, any termination of Parent or this Agreement for SPAC, any of its Affiliates against the Company, or any of its Affiliates or other SPAC Party and any of their respective respective, direct or indirect, former, current or future general or limited partners, stockholders, members, shareholders managers, directors, officers, employees, agents, Affiliates or Representatives for any and all losses that may be suffered based uponassignees (the “SPAC Non-Recourse Parties”), resulting from or arising out regardless of the circumstances giving rise to such termination, and upon . Upon payment of the Company Termination Fee in accordance with this Section 8.02(b)such amount, none of the Company or Company, any of its Affiliates Subsidiaries or any of their respective partnersrespective, membersdirect or indirect, shareholders former, current or Representatives future stockholders, directors, officers, employees, agents, Affiliates or assignees (the “Company Non-Recourse Parties”), shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement or the other transactions contemplated hereby. The Company expressly acknowledges and agrees that neither SPAC nor any other SPAC Party shall need to prove damages to receive the Company Termination Fee when it is payable under this Agreement, and hereby irrevocably waives any right to challenge the amount of actual damages represented by the Company Termination Fee. In no event shall SPAC, or any other SPAC Party, be entitled to the Company Termination Fee on more than one occasion.

Company Termination Fee. The Company shall pay to Parent $1,500,000 (the “Company Termination Fee”), by wire transfer of immediately available funds to an account or accounts designated in writing by Parent, in the event that: (i) If (A) this Agreement is terminated by Parent or the Company pursuant to Section 9.1(b)(i) (Termination Date) or by Parent pursuant to Section 9.1(d)(i) (Breach Termination); (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, (x) an Acquisition Proposal (whether or not conditional and whether or not withdrawn) shall have been publicly announced or shall have become publicly disclosed and, in either case, shall not have been publicly withdrawn or otherwise publicly abandoned without qualification at least three (3) Business Days prior to the Expiration Time or (y) an Acquisition Proposal (whether or not conditional and whether or not withdrawn) shall have been made to the Company Board or senior management of the Company and, in either case, shall not have been withdrawn or otherwise abandoned without qualification at least three (3) Business Days prior to the Expiration Time; and (C) within twelve (12) months following such termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or consummates an Acquisition Proposal, in which case the Company Termination Fee shall be payable substantially concurrently with the consummation of such Acquisition Transaction, provided that any amount previously paid to Parent pursuant to Section 9.3(f) shall be credited towards the payment of the Company Termination Fee under this Section 9.3(c)(i); (ii) this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii) (Superior Proposal), in which case the Company Termination Fee shall be payable concurrently with or prior to (and in any event as a condition of) such termination; or (iii) this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii) (Company Board Recommendation Change or Breach of No Solicitation/Company Board Recommendation), in which case the Company Termination Fee shall be payable within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result . For purposes of the failure references to an “Acquisition Proposal” or an “Acquisition Transaction” in Section 9.3(c)(i), all references in the definition of the Mergers “Acquisition Transaction” to “twenty percent (20%)” and “eighty percent (80%)” shall each be deemed to be consummated, the Company Termination Fee by wire transfer of immediately available fundsreferences to “fifty percent (50%). (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.”

Company Termination Fee. If: (i) If Parent shall terminate this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e9.1(d), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds.; or (ii) If this Agreement is terminated by either the Company or Parent shall terminate this Agreement pursuant to Section 8.01(c9.1(b)(ii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Stockholder Meeting or but after the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover date hereof an Acquisition Proposal shall have been publicly announced or publicly made known to the Company Special Committee (including any of its agents or the shareholders representatives) and communicated publicly or to any substantial number of stockholders of the Company or shall have been made directly to the stockholders of the Company by any Person or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover an Acquisition Proposal; or (iii) after the date hereof, an Acquisition Proposal and such Takeover Proposal or such intent has not by any Person shall have been publicly withdrawn or repudiated by such Person prior made known to the Company Shareholders Meeting (including any of its agents or the breach, respectively, representatives) and (B) within twelve (12) months after such termination, communicated publicly or to any substantial number of stockholders of the Company either consummates such Takeover Proposal or enters into a definitive agreement shall have been made directly to consummate such Takeover Proposal and the stockholders of the Company thereafter consummates such Takeover Proposal by any Person, or any Person shall have publicly announced an intention (whether or not within such twelve conditional) to make an Acquisition Proposal, and thereafter this Agreement is terminated pursuant to Section 9.1(b)(i) and the Company Stockholder Approval shall not theretofore have been obtained; then in any case as described in clause (12) month periodi), then (ii), or (iii) the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee Parent (by wire transfer of immediately available funds. ) (iiix) Notwithstanding anything $250,000,000 not later than the date of termination of this Agreement and (y) an additional $250,000,000 if and not later than the date an Acquisition Proposal is consummated or a definitive agreement is entered into by the Company providing for any Acquisition Proposal, as long as such Acquisition Proposal is consummated or such definitive agreement is executed within 12 months after the date of termination of this Agreement; PROVIDED, HOWEVER, that for the purpose of this clause (y), all references in the definition of Acquisition Proposal to 20% shall instead refer to 50%. The Company acknowledges that the contrary agreements contained in this Section 10.5 are an integral part of the transactions contemplated by this Agreement, Parent’s right to receive payment of and that, without these agreements, Parent would not enter into this Agreement. Accordingly, if the Company Termination Fee fails to pay timely any amount due pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of 10.5 and, in order to obtain such payment, Parent or any of its Affiliates commences a suit which results in a judgment against the CompanyCompany for the amount payable to Parent pursuant to this Section 10.5, or any of the Company shall pay to Parent its Affiliates or any of their respective partnerscosts and expenses (including attorneys' fees and expenses) in connection with such suit, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out together with interest on the amount so payable at the rate on six (6)-month United States Treasury obligations (as of the circumstances giving rise date such payment was required to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating be made pursuant to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby) plus three percent (3%).

Company Termination Fee. (i) If In the event this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii), the Company shall pay the Company Termination Fee to Parent simultaneously with such termination by wire transfer of same day funds to one or more accounts designated by Parent (or, if such account(s) or have not been designated by Parent prior to such termination, promptly, but in any event within two (2) Business Days, following the designation thereof in writing to the Company by Parent). (ii) In the event this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii)(A) (other than as a result of an Intervening Event Change of Recommendation), the Company shall pay the Company Termination Fee to Parent promptly, but in any event within three two (32) Business Days after the date of such termination, pay by wire transfer of same day funds to one or more accounts designated by Parent (or, if such account(s) have not been designated by Parent, as liquidated damages and not as a penalty and as promptly, but in any event within two (2) Business Days following the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against designation thereof in writing to the Company by Parent). (iii) In the event that (A) this Agreement is terminated (1) by either Parent or the Company pursuant to Section 9.1(b)(ii)(B) (and its Subsidiaries and any there has been no Intervening Event Change of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result Recommendation prior to the expiration date of the failure Offer) and prior to the time of such termination an Acquisition Proposal shall have been publicly announced, commenced or disclosed and shall not have been irrevocably and in good faith publicly withdrawn, or (2) by Parent pursuant to Section 9.1(d)(i) and prior to the Mergers time of such termination an Acquisition Proposal shall have been made known to be the Company Board or publicly announced, commenced or disclosed and shall not have been irrevocably and in good faith withdrawn, and (B) at any time after the execution of this Agreement and prior to the date that is twelve (12) months after the termination of this Agreement (the “Follow-On Period”), the Company consummates an Acquisition Proposal or enters into a definitive acquisition agreement related to an Acquisition Proposal with a Third Party that is subsequently (1) consummated at any time (for the avoidance of doubt, including consummation at any time after the Follow-On Period) or (2) terminated and, in connection with such termination, the Company receives a fee and/or expense reimbursement (“Acquisition Proposal Termination Fee”), the Company shall, on the date such Acquisition Proposal is consummated, if at all, or such Acquisition Proposal Termination Fee is received by the Company, if at all, pay (I) in the case of Section 9.4(b)(iii)(B)(1), the Company Termination Fee or (II) in the case of Section 9.4(b)(iii)(B)(2) the lesser of (x) the Company Termination Fee and (y) the Acquisition Proposal Termination Fee, reduced by, in the case of either clause (x) or clause (y), all out-of-pocket reasonable and documented fees and expenses incurred by or on behalf of the Company in connection with the applicable Acquisition Proposal (including any fees and expenses of financial advisors and legal counsel), in either case to Parent by wire transfer of immediately available fundssame day funds to one or more accounts designated by Parent; provided that, for purposes of this Section 9.4(b)(iii), (x) all percentages in the definition of Acquisition Proposal shall be replaced with 50%, (y) the definition of Acquisition Proposal shall exclude any sale or disposition of assets, exclusive license, collaboration or other co-development, co-promotion, co-marketing or similar transaction solely with respect to RECOTHROM or IL-21 to a Third Party (but not both to the same Third Party or its Affiliates), and (z) the definition of Acquisition Proposal shall be expanded to include any sale, disposition, license or transfer, whether direct or indirect, by the Company or any Company Subsidiary to a Third Party of all or a material portion of the Company’s rights with respect to IFN-lambda. (iiiv) If In the event that this Agreement is terminated by either (i) Parent pursuant to Section 9.1(d)(ii)(A) as a result of an Intervening Event Change of Recommendation pursuant to Section 7.5(d)(ii) or (ii) the Company or Parent pursuant to Section 8.01(c9.1(b)(ii)(B) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or expiration date of the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to Offer the Company Special Committee or the shareholders Board has made an Intervening Event Change of the Company or any Person shall have publicly announced an intention (whether or not conditional) Recommendation pursuant to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month periodSection 7.5(d)(ii), then the Company shall upon the consummation shall, within two (2) Business Days of such Takeover Proposaltermination, pay by wire transfer of same day funds to one or more accounts designated by Parent a termination fee of $57,400,000 (the “Intervening Event Termination Fee”) (or, if such account(s) have not been designated by Parent, as liquidated damages and not as a penalty and as promptly, but in any event within two (2) Business Days following the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against designation thereof in writing to the Company and its Subsidiaries and any by Parent). (v) For the avoidance of their respective Affiliatesdoubt, shareholders in no event shall the Company be obligated to pay, or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, both the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to and the contrary contained in this AgreementIntervening Event Termination Fee, Parent’s right to receive payment of or either the Company Termination Fee pursuant to this Section 8.02(b) constitute or the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Intervening Event Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyon more than one (1) occasion.

Company Termination Fee. (i) If In the event this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii), the Company shall pay the Company Termination Fee to Parent prior to such termination by wire transfer of same day funds to one or more accounts designated by Parent. (ii) or In the event this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii), the Company shall pay the Company Termination Fee to Parent promptly, but in any event within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundssame day funds to one or more accounts designated by Parent. (iiiii) If In the event that (A) (x) this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c9.1(b) and at or prior to the time of such termination an Acquisition Proposal shall have been publicly disclosed, announced or commenced and not in good faith withdrawn prior to the time of such termination, or (y) this Agreement is terminated by Parent pursuant to Section 8.01(g9.1(d)(i) as a result and at or prior to the time of a breach such termination an Acquisition Proposal shall have been publicly disclosed, announced or commenced or submitted or made known to the Company Board and not in good faith withdrawn prior to the time of any covenant or agreement contained in this Agreement such termination, and (AB) at any time after the date hereof execution of this Agreement and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders expiration of the Company or any Person shall have publicly announced an intention twelfth (whether or not conditional12th) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to month after the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such terminationtermination of this Agreement, the Company either consummates such Takeover any Acquisition Proposal or enters into a definitive agreement to consummate such Takeover Proposal and any Alternative Acquisition Agreement for an Acquisition Proposal, the Company thereafter consummates such Takeover shall, on the date any Acquisition Proposal is consummated, pay the Company Termination Fee (whether less the amount of any Reimbursable Expenses previously paid pursuant to Section 9.4(c)) to Parent by wire transfer of same day funds to one or not within such twelve (12) month periodmore accounts designated by Parent; provided that, for purposes of this Section 9.4(b)(iii), then all percentages in the definition of Acquisition Proposal shall be replaced with 50%. (iv) For the avoidance of doubt, in no event shall the Company shall upon the consummation of such Takeover Proposalbe obligated to pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, the Company Termination Fee by wire transfer of immediately available fundson more than one occasion. Parent shall have the right to assign the right to receive the Company Termination Fee to one or more Persons in its sole discretion. (iiiv) Notwithstanding anything to In the contrary contained circumstances in which the Company Termination Fee becomes payable and is paid in accordance with this AgreementSection 9.4(b), Parent’s right to receive payment receipt of the Company Termination Fee from the Company pursuant to this Section 8.02(b9.4(b) constitute shall be the sole and exclusive remedy of Parent or any of its Affiliates and Merger Sub under this Agreement against the Company, the Company Subsidiaries and each of their respective former, current and future directors, officers, employees, agents, general and limited partners, managers, members and stockholders; provided, however, that in no event shall the Company’s liability for the Company’s willful or intentional material breach of any of its Affiliates covenants or any of their respective partners, members, shareholders or Representatives for any and all losses that may obligations in this Agreement be suffered based upon, resulting from or arising out of the circumstances giving rise limited to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebyFee.

Company Termination Fee. (i) If In the event this Agreement is terminated by the Company pursuant to Section 8.01(d8.1(c)(ii), the Company must prior to or substantially concurrently with such termination pay the Company Termination Fee to Parent (or one or more of its designees) by wire transfer of same day funds to one or more accounts designated by Parent (or its designee(s)). (ii) In the event this Agreement is terminated by Parent pursuant to Section 8.01(e8.1(d)(ii), the Company shall pay the Company Termination Fee to Parent (or one or more of its designees) promptly, but in any event within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundssame day funds to one or more accounts designated by Parent (or its designee(s)). (iiiii) If In the event that (A) this Agreement is terminated by (x) Parent pursuant to Section 8.1(d)(i) or (y) by either Parent or the Company pursuant to Section 8.1(b)(i) or Section 8.1(b)(iii), (B) at or prior to the time of such termination an Acquisition Proposal or an intention to make an Acquisition Proposal shall have been made to the Company or the Company Stockholders or the Company Board or otherwise publicly announced or disclosed or otherwise communicated to senior management of the Company and (C) after the execution and delivery of this Agreement and prior to the twelve (12) month anniversary of the termination of this Agreement, the Company consummates the transactions contemplated by any Alternative Acquisition Agreement or any Acquisition Proposal or the Company enters into a definitive agreement providing for the consummation of the transactions contemplated by any Acquisition Proposal or the Company recommends or submits an Acquisition Proposal to the Company Stockholders for adoption (which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof), then the Company shall, on the earliest date that such Alternative Acquisition Agreement or an Acquisition Proposal is consummated, entered into, recommended or submitted pay the Company Termination Fee to Parent (or one or more of its designees) by wire transfer of same day funds to one or more accounts designated by Parent (or its designee(s)); provided, that for purposes of this Section 8.2(b)(iii), all percentages in the definition of Acquisition Proposal shall be replaced with 50%. (iv) In the event that this Agreement is terminated by the Company or Parent pursuant to Section 8.01(c8.1(b)(iii) or by Parent under circumstances in which the Company Termination Fee is not then payable pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period8.2(b)(iii), then the Company shall upon the consummation reimburse Parent and its Affiliates for all of such Takeover Proposaltheir reasonable and documented out-of-pocket fees and expenses (including all fees and expenses of financing sources, pay Parentcounsel, as liquidated damages accountants, investment bankers, experts and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I consultants to Parent and Merger Sub II against and their Affiliates) actually incurred by Parent or Merger Sub or on their behalf in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby (the “Parent Expenses”), up to a maximum amount of $2,750,000; provided, that the payment by the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Parent Expenses pursuant to be consummated, this Section 8.2(b)(iv) shall not relieve the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything any subsequent obligation to the contrary contained in this Agreement, Parent’s right to receive payment of pay the Company Termination Fee pursuant to this Section 8.02(b8.2(b) constitute (except that such obligation shall be reduced by the sole and exclusive remedy amount of Parent or any of its Affiliates against Expenses already paid to Parent by the Company). (v) For the avoidance of doubt, in no event shall the Company be obligated to pay, or any of its Affiliates or any of their respective partnerscause to be paid, membersthe Company Termination Fee on more than one occasion; provided, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment by the Company of the Company Termination Fee in accordance with this Section 8.02(b), none of shall not relieve the Company from any liability or damage resulting from a material breach of any of its Affiliates covenants or any of their respective partners, members, shareholders or Representatives agreements set forth in this Agreement. Parent shall have any further liability right to assign the right to receive the Company Termination Fee to one or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebymore Persons in its sole discretion.

Company Termination Fee. (i) If In the event that Parent terminates this Agreement is terminated by the Company pursuant to Section 8.01(d7.1(f), then Parent shall pay to the Company in cash (A) or an amount equal to the greater of (x) 5.0% of the total value of the consideration to be received by Parent and/or Parent’s stockholders (regardless of the form of such consideration) pursuant to Section 8.01(ethe definitive agreement entered into by Parent concerning a transaction that constitutes a Superior Proposal, and (y) $300,000 (the “Termination Fee”), as promptly as possible (but in any event within three (3) Business Days) following such termination, and (B) the Company shall within Termination Expenses no later than three (3) Business Days after the date receipt of documentation supporting such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundsExpenses. (ii) If this Agreement is terminated by either In the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time event that after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g)Parent Stockholder Approval, respectively, a Takeover (A) an Alternative Proposal shall have been publicly announced made to Parent or publicly shall have been made known directly to the Company Special Committee stockholders of Parent generally or the shareholders of the Company shall have otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover an Alternative Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) thereafter this Agreement is terminated pursuant to Sections 7.1(d) or 7.1(e), then Parent shall pay the Company the Termination Expenses no later than three (3) Business Days after receipt following termination of documentation supporting such Termination Expenses. If, concurrently with or within twelve (12) months after any such terminationtermination described in clause (B) in the immediately preceding sentence, the Company either consummates such Takeover Proposal or Parent enters into a definitive agreement with respect to, or consummates, any Alternative Proposal, then Parent shall pay to consummate such Takeover Proposal and the Company thereafter consummates the Termination Fee as promptly as possible (but in any event within three (3) Business Days) following the earlier of the entry into such Takeover Proposal (whether definitive agreement or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Alternative Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything In the event this Agreement is terminated pursuant to Section 7.1(d) (and Section 7.3(a)(ii) shall not apply) or pursuant to Section 7.1(g), then Parent shall pay to the contrary contained Company the Termination Expenses no later than three (3) Business Days after receipt following termination of documentation supporting such Termination Expenses. Any fee due and Termination Expenses to be reimbursed under this Section 7.3(a) shall be paid by wire transfer of same-day funds to an account provided in this Agreement, Parent’s right to receive payment of writing by the Company Termination Fee pursuant to Parent. For purposes of this Section 8.02(b) constitute 7.3(a), the sole and exclusive remedy of Parent or any of its Affiliates against term “Alternative Proposal” shall have the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise meaning assigned to such terminationterm in Section 9.11, and upon payment except that all references to “15%” in the definition of “Alternative Transaction,” as used in the Company Termination Fee in accordance with this Section 8.02(b), none definition of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives “Alternative Proposal” shall have any further liability or obligation relating be deemed to or arising out of this Agreement, the Mergers or the other transactions contemplated herebybe references to “25%.”

Company Termination Fee. (i) If this Agreement is validly terminated (A) by Parent pursuant to Section 8.1(a)(iv) (Company Recommendation Change), (B) by the Company pursuant to Section 8.01(d8.1(a)(iii) or (Company Superior Proposal), (C) by Parent pursuant to Section 8.01(e8.1(a)(vi) (Company’s Material Breach and Failure to Cure) solely by reason of a breach of Section 5.2 (Non-Solicitation; Acquisition Proposals), Section 6.1 (Preparation of Company Proxy Statement) or Section 6.2 (Company Shareholders Meeting) or (D) by either Parent or the Company pursuant to Section 8.1(a)(ii)(A) (Outside Date) or Section 8.1(a)(ii)(C) (No Company Shareholder Approval), and (1) prior to such termination any Person publicly announces a Company Takeover Proposal which shall not have been withdrawn, and (2) at any time on or prior to the first anniversary of such termination the Company or any of its Subsidiaries enters into a definitive agreement and consummates a transaction (whether before or after the end of such period), with respect to such Company Takeover Proposal (provided, that solely for purposes of this Section 8.2(b)(i)(D), the term “Company Takeover Proposal” shall have the meaning set forth in the definition of Company Takeover Proposal except that all references to 20% shall be deemed to be references to 50%), then the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer (to an account designated in writing by Parent) of immediately available funds. funds (ii1) If this Agreement is terminated by either in the Company or Parent pursuant to Section 8.01(c) or case of termination by Parent pursuant to Section 8.01(g8.1(a)(iv) as a result (Company Recommendation Change), Section 8.1(a)(vi) (Company’s Material Breach and Failure to Cure) solely by reason of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to by the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under of a covenant set forth in Section 8.01(g5.2 (Non-Solicitation; Acquisition Proposals), respectively, a Takeover Proposal shall have been publicly announced Section 6.1 (Preparation of Company Proxy Statement) or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention Section 6.2 (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (BMeeting) within twelve (12) months two Business Days after such termination, (2) in the case of termination by the Company either consummates such Takeover Proposal or enters into a definitive agreement pursuant to consummate such Takeover Proposal and the Section 8.1(a)(iii) (Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month periodSuperior Proposal), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders prior to or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to substantially concurrently with such termination, and upon payment or (3) in the case of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers termination by either Parent or the other transactions contemplated hereby.Company

Company Termination Fee. (i) If this Agreement is terminated (A) by the Company pursuant to Section 8.01(d8.01(e) or (B) by Parent pursuant to Section 8.01(e8.01(c) or Section 8.01(f), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of ParentAIG, Merger Sub I Parent and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders stockholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee by wire transfer of immediately available funds. If the Company Termination Fee shall be payable pursuant to clause (A) of the preceding sentence, the Company Termination Fee shall be paid on the date of such termination and if the Company Termination Fee shall be payable pursuant to clause (B) of the preceding sentence, the Company Termination Fee shall be paid no later than two (2) Business Days after the date of such termination. (ii) If this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c8.01(d) or Section 8.01(g) or by Parent pursuant to Section 8.01(g8.01(h) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting Stockholders Meeting, the termination of the Agreement pursuant to Section 8.01(g) or the breach giving rise to Parent’s right to terminate under Section 8.01(g8.01(h), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee Board of Directors or the shareholders stockholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting Stockholders Meeting, the termination of this Agreement pursuant to Section 8.01(g) or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the earliest of the consummation of such Takeover ProposalProposal or the entry into such definitive agreement with respect thereto, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of ParentAIG, Merger Sub I Parent and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders stockholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to ; provided, that for the contrary contained in this Agreement, Parent’s right to receive payment purposes of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b8.02(b)(ii), none of all references in the Company term Takeover Proposal to “15% or any of its Affiliates or any of their respective partners, members, shareholders or Representatives more” shall have any further liability or obligation relating be deemed to or arising out of this Agreement, the Mergers or the other transactions contemplated herebybe references to “more than 50%.”

Company Termination Fee. (i) If In the event that: (A) (1) an Acquisition Proposal (whether or not conditional) is made directly to the Company’s stockholders or is otherwise publicly disclosed or otherwise communicated to senior management of the Company or the Company Board, (2) this Agreement is terminated by the Company or Parent pursuant to Section 8.1(b)(i) or by Parent pursuant to Section 8.1(c)(i), and (3) within 12 months after the date of such termination, the Company enters into an agreement in respect of any Acquisition Proposal, or a transaction in respect of any Acquisition Proposal is consummated, which, in each case, need not be the same Acquisition Proposal that was made, disclosed or communicated prior to termination hereof (provided, that for purposes of this clause (3), each reference to “10%” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%”); (B) this Agreement is terminated by Parent pursuant to Section 8.1(c)(ii); or (C) this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e8.1(d)(ii); then, in any such event, the Company shall within three pay to Parent a fee of $3,595,838 (3the “Company Termination Fee”) Business Days after less the date amount of such terminationParent Expenses previously paid to Parent (if any) pursuant to Section 8.3(c). Parent acknowledges and agrees that the Company Termination Fee, pay Parenttogether with any Collection Costs payable, as shall be deemed to be liquidated damages and not as a penalty and as the such amounts shall be sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II any other Person against the Company Company’s Related Parties, and its Subsidiaries and none of the Company’s Related Parties shall have any of their respective Affiliates, shareholders other liability or Representatives obligation (other than to the Company) for any loss losses, claims, damages or damage liabilities suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee or incurred by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation other Person relating to or arising out of this Agreement, and neither Parent, Merger Sub nor any other person shall be entitled to bring or maintain any other Action against the Mergers Company or any other of the other Company’s Related Party arising out of this Agreement, or any of the transactions contemplated herebyhereby or any matters forming the basis for such termination, whether in law, in contract, in tort, or otherwise. For the avoidance of doubt, in no circumstances will Company be required to pay the Company Termination Fee on more than one occasion. (ii) Payment of the Company Termination Fee shall be made by wire transfer of same-day funds to the accounts designated by Parent (A) on the earliest of the execution of a definitive agreement with respect to, or consummation of, any transaction contemplated by an Acquisition Proposal, as applicable, in the case of a Company Termination Fee payable pursuant to Section 8.3(b)(i)(A), (B) as promptly as reasonably practicable after termination (and, in any event, within two Business Days thereof), in the case of termination by Parent pursuant to Section 8.1(c)(ii), or (C) simultaneously with, and as a condition to the effectiveness of, termination, in the case of a termination by the Company pursuant to Section 8.1(d)(ii).

Company Termination Fee. (ia) If this Agreement is terminated (i) by Parent pursuant to Section 7.4(a) (Company Change in Recommendation), then the Company shall, within two (2) Business Days after such termination, pay Parent a fee equal to $50,000,000 plus the Parent Expenses (the “Company Termination Fee”) less any amount of Parent Expenses previously paid by the Company. (b) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.01(d7.2(a) (Termination Date) or by Parent pursuant to Section 8.01(e7.2(b) (Company Stockholder Approval), the Company shall within three (3ii) Business Days prior to such termination referred to in clause (i) of this sentence, but after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectivelyAgreement, a Takeover Company Acquisition Proposal shall have been publicly announced or publicly made known to the Company Special Committee or any of its Subsidiaries or shall have been made directly to the shareholders of Company’s stockholders or otherwise communicated to the Company Board and the Company's stockholders (whether or not conditional) (or any Person shall have publicly announced an intention (a bona fide written intention, whether or not conditional) , to make a Takeover Proposal and such Takeover Proposal or such intent has Company Acquisition Proposal) and, in each case, not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelywithdrawn, and (Biii) within twelve (12) months after such terminationthe date of a termination in either of the cases referred to in clause (i) of this Section 7.5(b), the Company either consummates such Takeover a Company Acquisition Proposal or enters into an agreement contemplating a definitive agreement to consummate such Takeover Company Acquisition Proposal and which is subsequently consummated, then the Company thereafter consummates shall pay the Company Termination Fee, less any amount of Parent Expenses previously paid by the Company, concurrently with such Takeover Proposal consummation; provided that solely for purposes of this Section 7.5(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.2(d), except that the references to “twenty (whether 20%) or not within such twelve more” shall be deemed to be references to “fifty percent (1250%) month periodor more”. In no event shall the Company be required to pay the Company Termination Fee or the Parent Expenses on more than one occasion. (c) If this Agreement is terminated by Parent or the Company pursuant to Section 7.2(b) (Company Stockholder Approval), then the Company shall upon the consummation of such Takeover Proposal, pay to Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. , a fee equal to $10,000,000 (iiithe “Parent Expenses”) Notwithstanding anything to the contrary contained as promptly as practicable (and, in this Agreementany event, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(bwithin two (2) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to Business Days following such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. The Company agrees that if this Agreement shall be terminated: (i) If by Parent pursuant to Section 8.01(c)(ii), then (so long as Parent was not in breach of any of its representations, warranties or covenants in this Agreement is terminated such that the applicable condition to the Company’s obligation to consummate the Merger would not have been satisfied as of the Termination Date) the Company shall pay the Company Termination Fee as directed by Parent in writing; (ii) by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e8.01(d)(ii), then the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee (which Company Termination Fee shall be paid concurrently with such termination) as directed by wire transfer of immediately available funds.Parent in writing; or (iiiii) If this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c8.01(b)(iii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof of this Agreement and prior to the Company Shareholders Meeting Stockholders Meeting, or the breach giving rise to Parent’s right to terminate under Section 8.01(g)any postponement or adjournment thereof, respectively, a Takeover an Acquisition Proposal shall have been publicly announced or publicly made known directly to the Company Special Committee or the shareholders of the Company Company’s stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover an Acquisition Proposal, or an Acquisition Proposal shall have otherwise become publicly known, and in each case such Takeover Acquisition Proposal or such intent has shall have not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or date of the breachStockholders Meeting, respectivelythen, and (B) if within twelve (12) months one year after such termination, the Company either consummates shall have made a communication to its stockholders contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer (other than any communication in which the Company rejects such Takeover Proposal tender or enters exchange offer)), with regard to, entered into a definitive agreement to consummate with respect to, or consummated, any transaction that would qualify as an Acquisition Proposal under this Agreement, then, in any such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period)event, then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent an amount equal to the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything Fee, such payment to be made upon the contrary contained in this Agreement, Parent’s right to receive payment earlier of the Company Termination Fee pursuant to this Section 8.02(b) constitute date of such communication or of the sole and exclusive remedy entering into of Parent or any of its Affiliates against the Companysuch an agreement providing for, or any of its Affiliates or any of their respective partnersconsummating, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebya transaction.

Company Termination Fee. (i) If the Company terminates this Agreement is terminated by the in accordance with Section 8.01(c)(i) (Superior Company Proposal) or Parent terminates this Agreement pursuant to Section 8.01(d8.01(d)(i) or by Parent pursuant to Section 8.01(e(Company Adverse Recommendation Change), the Company shall within pay to Parent the Company Termination Fee. The Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) prior to or concurrently with such termination of this Agreement by the Company in accordance with Section 8.01(c)(i) (provided, in furtherance of Section 8.01(c)(i), the receipt of the Company Termination Fee by Parent shall be required to validly terminate this Agreement) or no later than three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy termination of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers this Agreement by Parent pursuant to be consummated, the Company Termination Fee by wire transfer of immediately available fundsSection 8.01(d)(i). (ii) If (1) either (A) Parent or the Company terminates this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c8.01(b)(i) (End Date) (but only if a Parent Termination Fee is not also payable under Section 8.02(b)) or by Section 8.01(b)(iii) (No Company Stockholder Approval) or (B) Parent terminates this Agreement pursuant to Section 8.01(g8.01(d)(ii) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(gTerminable Breach), respectively, (2) a Company Takeover Proposal shall have been publicly announced disclosed or publicly made known to the Company Special Committee or Company Board and in the shareholders case of a publicly disclosed Company Takeover Proposal, is not publicly withdrawn, (A) in the case of a termination pursuant to Section 8.01(b)(i) (End Date) or Section 8.01(d)(ii) (Company Terminable Breach), prior to the date of such termination, or (B) in the case of a termination pursuant to Section 8.01(b)(iii) (No Company Stockholder Approval), prior to the date of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelyStockholders Meeting, and (B3) within twelve (12) months after such terminationthe termination of this Agreement, the Company either consummates such shall have entered into any Company Acquisition Agreement, or consummated any Company Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period)Proposal, then the Company shall upon pay the Company Termination Fee to Parent (to an account designated in writing by Parent) within three (3) Business Days after the earlier of the date the Company enters into such Company Acquisition Agreement or the consummation of such transaction. For purposes of clause (3) of this Section 8.02(c)(ii), the term “Company Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as ” shall have the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise meaning assigned to such termination, and upon payment of the Company Termination Fee term in accordance with this Section 8.02(b5.03(g)(i), none except that the applicable percentage in the definition of the “Company Takeover Proposal” shall be “more than fifty percent (50%)” rather than “twenty percent (20%) or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebymore.”

Company Termination Fee. (a) In the event that: (i) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e8.01(c)(i), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee to Parent or its designee by wire transfer of immediately available funds.same-day funds no later than two (2) business days following such termination; (ii) If (A) this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c8.01(b)(iii) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and 8.01(c)(ii), (AB) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g8.01(c)(ii) (as applicable), respectively, a Takeover Proposal shall have been made known to the Company Board or publicly announced or publicly made known to the holders of Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or Shares and not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the such breach, respectively, and (BC) within twelve (12) months after such termination, the Company either consummates such any Takeover Proposal or enters into a definitive written agreement to consummate such any Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and to Parent or its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, designee the Company Termination Fee by wire transfer of immediately available funds.same-day funds upon the earlier of the consummation of the Takeover Proposal or the entry into a definitive agreement with respect thereto; provided that, for purposes of this Section 8.03(a)(ii), the references to “ten percent (10%)” in the definition of Takeover Proposal shall be deemed to be references to “fifty percent (50%)”; (iii) Notwithstanding anything this Agreement is terminated by the Company pursuant to Section 8.01(d)(ii), the contrary contained in this Agreement, Parent’s right to receive payment of Company shall pay the Company Termination Fee to Parent or its designee by wire transfer of same-day funds simultaneously with such termination; or (iv) this Agreement is terminated by Parent pursuant to Section 8.01(c)(iii), the Company shall pay the Company Termination Fee to Parent or its designee by wire transfer of same-day funds within two (2) business days after such termination; In no event shall the Company be required to pay the Company Termination Fee more than once. (b) Each of the parties acknowledges and hereby agrees that the agreements contained in this Section 8.03 are an integral part of the Transactions, and that, without these agreements, the other parties would not enter into this Agreement; accordingly, if the Company fails to timely pay any amount due pursuant to this Section 8.02(b8.03, and, in order to obtain the payment, Parent commences an Action that results in a judgment against the Company for the payment set forth in this Section 8.03, the Company shall pay Parent for its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such Action, together with interest on such amount at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually received. Each of the parties acknowledge and hereby agrees that the Company Termination Fee if paid, as, and when required pursuant to this Section 8.03, shall not constitute a penalty but will be liquidated damages and, except in the case of Willful Breach or fraud, should be Parent’s sole and exclusive remedy in connection with such termination; provided that, nothing shall limit any right of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such specific performance prior to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. The Company shall pay Parent a termination fee in the amount of Nineteen Million Two Hundred Thousand Dollars (i$19,200,000) If (the “Company Termination Fee”), in the manner and at the time set forth in Section 11.02(c) hereof, in the event that this Agreement is terminated by the Company as follows: (i) if Parent shall terminate this Agreement pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e11.01(d), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds.; (ii) If this Agreement is terminated by either in the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and event that (A) at any time after the date hereof and prior to the a Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Alternative Proposal shall have been publicly announced announced, commenced or otherwise become publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal Company Alternative Proposal, (B) thereafter this Agreement is terminated by either Parent or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or pursuant to Section 11.01(b) for failure of the breach, respectivelyMerger to be consummated by the date specified therein, and (BC) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out termination of this Agreement, the Mergers Company enters into an agreement with respect to any Company Alternative Proposal or any Company Alternative Proposal is consummated; (iii) in the event that (A) at the time of the meeting of the Company’s shareholders held pursuant to Section 6.03 or at any adjournment or postponement thereof at which a vote on such approval is taken a Company Alternative Proposal shall have been publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Company Alternative Proposal; (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 11.01(f) because the required affirmative vote of the Company’s shareholders shall not have been received; and (C) within twelve (12) months of the date of such termination of this Agreement, the Company enters into an agreement with respect to any Company Alternative Proposal or any Company Alternative Proposal is consummated; or (iv) in the event that (A) a Company Alternative Proposal shall have been presented to the Company’s Board of Directors, publicly announced, commenced or otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional) to make a Company Alternative Proposal, (B) thereafter this agreement is terminated by Parent pursuant to Section 11.01(e) for a breach by the Company of any of its covenants or agreements (other transactions contemplated herebythan the covenants and agreements contained in Sections 6.03 and 6.04); and (C) within twelve (12) months of the date of such termination of this Agreement, the Company enters into an agreement with respect to any Company Alternative Proposal or any Company Alternative Proposal is consummated.

Company Termination Fee. (i) If (A) (1) this Agreement is validly terminated pursuant to Section 6.1(c) or Section 6.1(d) or (2) Parent validly terminates this Agreement pursuant to Section 6.1(e) as a result of a breach, failure to perform or inaccuracy by the Company that first occurred following the making of an Acquisition Proposal of the type referenced in the following clause (B), (B) after the date hereof and prior to the date of such termination (except in the case of termination pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e6.1(d), the Company shall within in which case at least three (3) Business Days after business days prior to the Company Stockholder Meeting (or any adjournment or postponement thereof)) a bona fide Acquisition Proposal is publicly disclosed (whether by the Company or a third party), or otherwise publicly made known to the Company Board or the Company Stockholders, and in each case, is not publicly withdrawn at least three (3) business days prior to the earlier of the date of the Company Stockholder Meeting (or any adjournment or postponement thereof) and the date of such termination and (C) within twelve (12) months of such termination, pay Parentan Acquisition Proposal is consummated or a definitive agreement in respect of an Acquisition Proposal is entered into, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against then the Company and its Subsidiaries and any will concurrently with the earlier of their respective Affiliates(x) the consummation of such Acquisition Proposal or (y) entry into the definitive agreement in respect of such Acquisition Proposal, shareholders pay, or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, to Parent an amount in cash equal to the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent if one has been so designated by Parent. For purposes of this Section 6.3(b)(i), all references to “20%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%.” (ii) If Parent validly terminates this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period6.1(f), then the Company shall upon the consummation of promptly (and in any event within five (5) business days) following such Takeover Proposaltermination pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, to Parent the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent if one has been so designated by Parent. (iii) Notwithstanding anything If the Company validly terminates this Agreement pursuant to Section 6.1(h), then the contrary contained in this AgreementCompany shall prior to or substantially concurrently with such termination pay, Parent’s right or cause to receive payment of be paid, to Parent the Company Termination Fee pursuant by wire transfer of immediately available funds to this Section 8.02(b) constitute the sole and exclusive remedy of Parent an account or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee accounts designated in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebywriting by Parent.

Company Termination Fee. (a) Except as otherwise set forth in this Section 8.3 and Section 8.4, all fees and expenses incurred in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated. Notwithstanding the foregoing, (i) If Parent shall pay the SEC filing fees associated with the S-4 Registration Statement and (ii) Parent and the Company each shall pay 50% of the costs and expenses incurred in connection with the printing and mailing of the Proxy Statement/Prospectus. (b) In the event that: (i) this Agreement is terminated pursuant to Section 8.1(c); (ii) this Agreement is terminated pursuant to Section 8.1(g); or (iii) (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.01(d8.1(d) or by Parent pursuant to Section 8.01(e8.1(h) (as a result of any material breach of Section 5.3 or Section 5.4), the Company shall within three (3B) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and or prior to the Company Shareholders Meeting or time of the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectivelytermination of this Agreement, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person Third Party shall have publicly announced an intention (whether or not conditional) to make a Takeover Acquisition Proposal and such Takeover Acquisition Proposal or such intent has shall not have been publicly withdrawn or repudiated by such Person prior to without qualification and (C) the Company Shareholders Meeting or any Subsidiary of the breach, respectively, and (B) Company consummates an Acquisition Proposal within twelve (12) months after such termination, termination or the Company either consummates such Takeover Proposal or any Subsidiary of the Company enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month periodmonths after such termination to effect an Acquisition Proposal (provided that, for purposes of this Section 8.3(b)(iii), all percentages in the definition of Acquisition Proposal shall be replaced with 50%), provided that no Termination Fee shall be payable pursuant to this Section 8.3(b)(iii) if Parent would be or is required to pay the Regulatory Approval Reverse Termination Fee pursuant to Section 8.4(a), then the Company shall upon pay to Parent a fee in an amount equal to $12,500,000 (the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company “Termination Fee Fee”) by wire transfer of immediately available federal funds, free of costs and charges, to an account designated in writing by Parent, and in each case, shall also pay all of the reasonable and documented out-of-pocket expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated hereby, in an amount not to exceed $2,000,000 (the “Parent Expense Reimbursement”), (x) in the case of Section 8.3(b)(i), within two (2) business days after such termination, (y) in the case of Section 8.3(b)(ii), concurrently with termination of this Agreement and (z) in the case of Section 8.3(b)(iii), upon the earlier of the entry into a definitive agreement with respect to an Acquisition Proposal or the consummation of an Acquisition Proposal. For the avoidance of doubt, any payment made by the Company under this Section 8.3(b) shall be payable only once with respect to this Section 8.3(b) and not in duplication even though such payment may be payable under one or more provisions hereof. (iiic) Notwithstanding anything to The Company acknowledges and agrees that the contrary agreements contained in this Agreement, Parent’s right to receive payment Section 8.3 are an integral part of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of transactions contemplated by this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Mergers or Company shall fail to pay the other transactions contemplated herebyTermination Fee when due, such fee shall also be deemed to include the costs and expenses incurred by Parent and Merger Sub (including fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.3, together with interest on such unpaid fee, commencing on the date that such fee became due, at a rate equal to the rate of interest published in the “Money Rates” section of The Wall Street Journal in effect on the date such fee became due.

Company Termination Fee. If, but only if, this Agreement is validly terminated: (i) If this Agreement is terminated by Parent or the Company pursuant to Section 8.01(b) (and at the time of such termination the Company is not able to terminate this Agreement pursuant to Section 8.01(i)) or Section 8.01(d) ), or by Parent pursuant to Section 8.01(e), the Company and in each case, (A) a Third Party shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers have made an Acquisition Proposal to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant its Representatives or shall have publicly proposed or made (or publicly announced an intention, whether or not conditional, to Section 8.01(cmake) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained an Acquisition Proposal, in this Agreement and (A) at any time each case after the date hereof (and in the case of Section 8.01(d), such Acquisition Proposal or publicly proposed or announced intention shall have been made prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders date of the Company or Shareholder Meeting (including any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal adjournments and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelypostponements thereof)), and (B) within twelve (12) months after of such terminationtermination of this Agreement, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover providing for the implementation of any Acquisition Proposal and the Company thereafter consummates such Takeover or any Acquisition Proposal (whether or not within such twelve (12) month period)is consummated, then the Company shall upon the consummation of such Takeover Proposalpay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, to the account or accounts designated by Parent, the Company Termination Fee by wire transfer (x) within three (3) Business Days after the date on which the Company enters into a definitive written agreement providing for the implementation of immediately available funds. any Acquisition Proposal or (iiiy) Notwithstanding anything concurrently with the consummation of any Acquisition Proposal; provided, however, that, if Parent has not provided wiring instructions in writing to the contrary contained in this Agreement, Parent’s right to receive Company for payment of the Company Termination Fee at least one (1) Business Day prior to entry into such definitive written agreement or at least one (1) Business Day prior to the consummation of such Acquisition Proposal, the Company shall not be required to pay the Company Termination Fee pursuant to this Section 8.02(b8.03(a)(i) constitute until one (1) Business Day after Parent has provided such wiring instructions in writing to the sole and exclusive remedy Company (provided, further, that for purposes of this Section 8.03(a), the references to “fifteen percent (15%)” in the definition of Acquisition Proposal shall be deemed to be references to “fifty percent (50%)”); (ii) by Parent or any of its Affiliates against pursuant to Section 8.01(g), then the CompanyCompany shall pay, or any cause to be paid, to Parent (or its designee) the Company Termination Fee not later than the later of its Affiliates or any of their respective partners, members, shareholders or Representatives (A) three (3) Business Days following such termination and (B) one (1) Business Day after Parent has provided wiring instructions in writing to the Company for any and all losses that may be suffered based upon, resulting from or arising out payment of the circumstances giving rise Company Termination Fee; or (iii) by the Company pursuant to Section 8.01(h), then the Company shall pay, or cause to be paid, to Parent (or its designee) the Company Termination Fee prior to or concurrently with such termination; provided, and upon however, that if such termination pursuant to Section 8.01(h) occurs on or prior to January 22, 2026, following the execution of this Agreement (the “Initial Fee End Date”) to enter into a definitive agreement with an Excluded Party providing for a Superior Proposal, the Company shall instead pay, or cause to be paid, to Parent (or its designee) $25,250,000 prior to or concurrently with such termination; provided, further, that, in each case, if Parent has not provided wiring instructions in writing to the Company for payment of the Company Termination Fee at least one (1) Business Day prior to any termination described in accordance with this Section 8.02(b8.03(a)(iii), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating not be required to or arising out of pay the Company Termination Fee pursuant to this Agreement, Section 8.03(a)(iii) until one (1) Business Day after Parent has provided such wiring instructions in writing to the Mergers or the other transactions contemplated herebyCompany.

Company Termination Fee. (i) If (A) this Agreement is validly terminated pursuant to Section 8.1(d) or Section 8.1(e); (B) following the execution and delivery of this Agreement and prior to the termination of this Agreement pursuant to Section 8.1(d) or Section 8.1(e) a bona fide Acquisition Proposal or Inquiry for an Acquisition Transaction has been publicly announced or disclosed and not withdrawn or has otherwise become known to the Company Board (or a committee thereof) and not withdrawn in each case prior to the Company Stockholder Meeting or the event giving rise to such right of termination, respectively; and (C) within twelve (12) months following the termination of this Agreement pursuant to either such provision, either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction, then the Company shall substantially concurrently upon the earlier of the entry into such definitive agreement and such consummation pay the Company Termination Fee (less the amount of any Parent Expenses reimbursed pursuant to Section 8.3(b)(iv)) by wire transfer of immediately available funds to an account or accounts designated in writing by Parent. For purposes of this Section 8.3(b)(i), all references to “20%” in the definition of “Acquisition Transaction” will be deemed to be references to “40%”. (ii) If this Agreement is validly terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e8.1(f), then the Company shall must promptly (and in any event within three two (32) Business Days after the date of Days) following such terminationtermination pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, to Parent the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent if one has been so designated by Parent following request therefor (or if not so designated, as promptly as possible thereafter such designation). (iiiii) If this Agreement is validly terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period8.1(h), then the Company shall upon the consummation of must substantially concurrently with such Takeover Proposaltermination pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, to Parent the Company Termination Fee by wire transfer of immediately available fundsfunds to an account or accounts designated in writing by Parent if one has been so designated by Parent following request therefor (or if not so designated, as promptly as possible thereafter such designation). (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (ik) If this Agreement is terminated by CWS pursuant to Section 8.3(a) hereof, then the Company shall pay to CWS as liquidated damages (by wire transfer of immediately available funds), within ten (10) Business Days after such termination, a termination fee of two hundred thousand dollars ($200,000) (the “Company Termination Fee”). (l) If this Agreement is terminated by the Company pursuant to Section 8.01(d8.4(a) or by Parent pursuant to Section 8.01(e)hereof, then the Company shall within three (3) Business Days after the date of such termination, pay Parent, to CWS as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee (by wire transfer of immediately available funds) within ten (10) Business Days after such termination, the Company Termination Fee. (iim) If this Agreement is terminated (i) by either CWS pursuant to Section 8.3(b) hereof, provided that the Requisite Company Vote shall not have been obtained at the Company Stockholders Meeting (including any adjournment or postponement thereof) or (ii) by the Company or Parent CWS pursuant to (x) Section 8.2(a) hereof and provided that the Requisite Company Vote shall not have been obtained at the Company Stockholders Meeting (including any adjournment or postponement thereof) or (y) Section 8.2(c) hereof and, in the case of clauses (i) and (ii) immediately above, (A) prior to such termination (in the case of termination pursuant to Section 8.01(c8.2(a) or by Parent Section 8.3(b)) or the Company Stockholders Meeting (in the case of termination pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g8.2(c), respectively), a Takeover Proposal shall (1) in the case of a termination pursuant to Section 8.2(a) or Section 8.2(c), have been publicly announced disclosed and not withdrawn or (2) in the case of a termination pursuant to Section 8.3(b), have been publicly disclosed or otherwise made known or communicated to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or Board, and not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelywithdrawn, and (B) within twelve twenty-four (1224) months after following the date of such terminationtermination of this Agreement, the Company either consummates such Takeover Proposal or enters shall have entered into a definitive agreement with respect to consummate any Takeover Proposal, or any Takeover Proposal shall have been consummated (in each case whether or not such Takeover Proposal and is the Company thereafter consummates such same as the original Takeover Proposal (whether made, communicated or not within such twelve (12) month periodpublicly disclosed), then in any such event the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee CWS (by wire transfer of immediately available funds) within ten (10) Business Days of the closing of such transaction, the Company Termination Fee (it being understood for all purposes of this Section 8.6(c), all references in the definition of Takeover Proposal to 20% shall be deemed to be references to “more than 50%” instead). If a Person (other than CWS) makes a Takeover Proposal that has been publicly disclosed and subsequently withdrawn prior to such termination or the Company Stockholder Meeting, as applicable, and, within twenty-four (24) months following the date of the termination of this Agreement, such Person or any of its controlled Affiliates makes a Takeover Proposal that is publicly disclosed, such initial Takeover Proposal shall be deemed to have been “not withdrawn” for purposes of clauses (1) and (2) of this paragraph (c). (iiin) Notwithstanding anything Subject to the contrary contained in Section 9.14 of this Agreement, Parentif the Company fails, directly or indirectly, to effect the Closing for any or no reason or otherwise breaches this Agreement (whether willfully, intentionally, unintentionally or otherwise) or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise) then CWS’s right and NewCo’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the Company and any of its Affiliates, stockholders, officers, directors or Representatives (each a “Company Related Party”) for any breach, loss or damage shall be to terminate this Agreement pursuant to Section 8.3(a) or Section 8.3(b) hereof and receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, Fee; and upon payment of such amount by the Company, neither CWS nor NewCo nor any other Person shall have any rights or claims against any of the Company Termination Fee Related Parties under this Agreement or otherwise, whether at law or equity, in accordance with this Section 8.02(b)contract, in tort or otherwise, and none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement or the other transactions contemplated herebyby this Agreement. For the avoidance of doubt, in no event shall the Company or any Company Related Party have any liability under or in respect of this Agreement or the transactions related thereto in excess of an aggregate amount equal to the Company Termination Fee.

Company Termination Fee. The Company agrees that the Company shall pay to Parent an amount equal to $1,285,000 (the “Company Termination Fee”) if this Agreement is validly terminated pursuant to: (i) If Section 9.01(b) by Parent or the Company and at any time after the date of this Agreement is terminated by and before its termination any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, within nine months following the termination of this Agreement; (ii) Section 9.01(e) by Parent or the Company and at any time after the date of this Agreement and before the vote on this Agreement at the Company Stockholders Meeting any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, within nine months following the termination of this Agreement; (iii) Section 9.01(f) by Parent if the Company has knowingly and willfully breached its representations, warranties, covenants or agreements set forth in this Agreement; (iv) Section 9.01(g)(i) or Section 9.01(g)(iii); (v) Section 9.01(g)(ii) and at any time after the date of this Agreement and before its termination any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to that Acquisition Proposal, or that Acquisition Proposal is consummated, within twelve months following the termination of this Agreement; (vi) Section 9.01(h) and at any time after the date of this Agreement and before the vote on this Agreement at the Company Stockholders Meeting any Person shall have made an Acquisition Proposal and the Company enters into a definitive agreement with respect to an Acquisition Proposal, or an Acquisition Proposal is consummated, within nine months following the termination of this Agreement; or (vii) Section 9.01(j). If the Company Termination Fee is payable pursuant to Section 8.01(d9.03(b)(iii), Section 9.03 (b)(iv) or by Parent pursuant to Section 8.01(e9.03(b)(vii), the Company Termination Fee shall within three (3) Business Days after be paid by the Company as directed by Parent in writing in immediately available funds on the date of such termination, pay termination of this Agreement by the Company or as soon as is reasonably practicable following the date of termination of this Agreement by Parent, but in any event no more than two Business Days following such date. If the Company Termination Fee is payable pursuant to Section 9.03(b)(i), Section 9.03(b)(ii), Section 9.03(b)(v) or Section 9.03(b)(vi), the Company Termination Fee shall be paid by the Company as liquidated damages and not as a penalty and as directed by Parent in writing in immediately available funds on the date of consummation of the relevant Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, if this Agreement may be terminated under circumstances where the Company Termination Fee would be payable pursuant to this Section 9.03(b), the payment of the Company Termination Fee (plus the amounts payable under Section 9.03(d), if any) shall be the sole and exclusive remedy of Parent, Merger Sub I Parent and Merger Sub II MergerSub against the Company and its Subsidiaries and any of their respective Affiliatesformer, shareholders current, or Representatives future general or limited partners, stockholders, managers, members, directors, officers, affiliates or agents (each of the foregoing, the “Company Related Parties”) for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a any breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives consummated for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such terminationreason, and upon payment of by the Company Termination Fee of such amounts due in accordance with this Section 8.02(b)Agreement, none of the Company Company, its Subsidiaries or any of its Affiliates or any of their respective partners, members, shareholders or Representatives the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement (or the other termination of this Agreement) or the transactions contemplated herebyby this Agreement (or the abandonment thereof) other than with respect to the Confidentiality Agreement. Notwithstanding the foregoing, nothing contained in this Section 9.03(b) shall restrict Parent's or MergerSub's rights to seek specific performance pursuant to the terms of Section 10.06. For purposes of Section 9.03(b)(i), Section 9.03(b)(ii), Section 9.03(b)(v) and Section 9.03(b)(vi), references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50.1%.”

Company Termination Fee. In the event that: (a) (i) If this This Agreement is terminated by the Company pursuant to Section 8.01(d8.01(f), then the Company shall, concurrently with such termination: (A) pay to Parent by wire transfer of same-day funds all reasonable and documented out-of-pocket expenses of Parent and Sub incurred in connection with this Agreement and the transactions contemplated hereby, not to exceed $10,000,000 (the “Expense Reimbursement”); and (B) issue a promissory note for the amount of the Company Termination Fee, minus any Expense Reimbursement paid, in favor of Parent that shall accrue simple interest at the rate equal to the prime rate of Citibank N.A. in effect on the date such promissory note is issued, which shall mature on the earlier of (1) the date the Superior Proposal accepted by the Company pursuant to Section 5.02(c)(ii)(B) is consummated or (2) the six (6) - month anniversary of the date of termination of this Agreement by the Company pursuant to Section 8.01(f), (b) This Agreement is terminated by Parent pursuant to Section 8.01(e), then the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer of same-day funds immediately available funds.following such termination of this Agreement, or (i) After the date of this Agreement, a Takeover Proposal shall have been announced, commenced, publicly disclosed or made known to the Company Board, (ii) If thereafter, this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c8.01(b)(i) or Section 8.01(b)(iii) or by Parent pursuant to Section 8.01(g8.01(c) as a result of a breach of any covenant or agreement contained in this Agreement and (Aiii) at any time after the date hereof execution of this Agreement and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders expiration of the Company or any Person shall have publicly announced an intention twelfth (whether or not conditional12th) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to month after the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such terminationtermination of this Agreement, the Company either consummates such a Takeover Proposal or enters into any letter of intent, agreement in principle, acquisition agreement or other similar Contract related to a definitive agreement to consummate such Takeover Proposal and or to commercialization rights for the Company thereafter consummates such Takeover Proposal Covered Product (whether exclusive or not within such twelve (12) month periodnon-exclusive), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer of immediately available fundssame-day funds on the date of consummation of the transaction contemplated by any Takeover Proposal referred to in clause (iii) above or on the date of entry into any letter of intent, agreement in principle, acquisition agreement or other similar Contract related commercialization rights for the Covered Product (whether exclusive or non-exclusive). (iiid) Notwithstanding anything For purposes of: (i) Section 8.03(c), the term “Takeover Proposal” shall have the meaning assigned to such term in Section 5.02(a) except that all references to “15%” therein shall be deemed to be references to “35%”. (ii) This Section 8.03, the contrary “Company Termination Fee” means $75,879,404 (inclusive of Parent’s and Sub’s expenses), in cash. (e) Each of the Company, Parent, and Sub acknowledges that (i) the agreements contained in Section 8.03(a), (b) and (c) are an integral part of the transactions contemplated by this Agreement, Parent’s right to receive payment of (ii) without these agreements Parent and Sub would not enter into this Agreement and (iii) the Company Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that is intended to compensate Parent and Sub in the circumstances in which such Company Termination Fee is payable. Accordingly, if the Company fails to promptly pay any amount due pursuant to this Section 8.02(b8.03(a), (b) constitute or (c) and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company or any successor of the Company for the amount set forth in Section 8.03(a), (b) or (c) or any portion thereof, the Company shall pay to Parent costs and expenses (including attorneys’ fees) incurred by the Parent and its Affiliates in connection with such suit, together with interest on such amount or portion thereof at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment. If the Company Termination Fee is paid when and as due in accordance with the provisions of Section 8.03(a), in connection with a termination otherwise in accordance with the terms of Section 8.01, such payment shall be the sole and exclusive remedy of available to Parent or any of and Sub, except in a circumstance where Seller has otherwise intentionally breached its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of obligations under this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. (i) If this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e), the Company shall shall, in the case of a termination pursuant to Section 8.01(d) prior to or concurrently with or, in the case of a termination pursuant to Section 8.01(e), promptly, and in any event within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated (A) (1) by either Parent or the Company or Parent pursuant to Section 8.01(c8.01(f) and a vote on the proposal to adopt this Agreement has not been taken at the Company Stockholders Meetings by the Outside Termination Date and at any time after the date hereof and prior to such termination a Takeover Proposal shall have been publicly announced or made known to the Company Board of Directors and not rejected by the Company Board of Directors at least three (3) Business Days prior to the Outside Termination Date, (2) by Parent pursuant to Section 8.01(g) as (other than a result termination because of a breach or inaccuracy of Section 4.09(b)) and at any covenant time after the date hereof and prior to the breach giving rise to Parent's right to terminate under Section 8.01(g), a Takeover Proposal shall have been publicly announced or agreement contained in this Agreement made known to the Company Board of Directors and not withdrawn prior to such breach or (A3) by Parent or the Company pursuant to Section 8.01(c) and at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectivelyStockholders Meeting, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders Board of Directors and not publicly rejected by the Company or any Person shall have publicly announced an intention Board of Directors at least three (whether or not conditional3) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person Business Days prior to the Company Shareholders Stockholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such any Takeover Proposal or enters into a definitive agreement to consummate such any Takeover Proposal and the Company thereafter consummates such the Takeover Proposal that is the subject of such definitive agreement (whether or not within such twelve (12) month period), then the Company shall upon shall, within two (2) Business Days after the earlier of the entry into such definitive agreement or the consummation of such the Takeover ProposalProposal described in clause (B), pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, Parent the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to ; provided, that for the contrary contained in this Agreement, Parent’s right to receive payment purposes of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b8.02(b)(ii), none (I) all references in the term Takeover Proposal to "15% or more" shall be deemed to be references to "more than 50%" and (II) in the case of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreementa termination under Section 8.01(c), the Mergers definitive agreement or Takeover Proposal described in clause (B) involves the other transactions contemplated herebyPerson who made the Takeover Proposal described in clause (A)(3) or an Affiliate of such Person.

Company Termination Fee. In the event that (i) If this the Merger Agreement is terminated (a) by Celgene or Receptos due to an Outside Date Termination (provided that (1) the Company pursuant to Section 8.01(dMinimum Condition has not been satisfied at the time of such termination and (2) or by Parent pursuant to Section 8.01(e), the Company shall within three Antitrust Condition is satisfied at the time of such termination and (3) Business Days after there is no Restraint) or (b) by Celgene due to a Receptos Breach Termination, (ii) following the date execution and delivery of the Merger Agreement and prior to such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover an Acquisition Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have become publicly announced an intention (whether or disclosed and, in either case, shall not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not have been publicly withdrawn or repudiated by such Person prior to termination of the Company Shareholders Meeting or the breachMerger Agreement (any such Acquisition Proposal, respectively, a “Disclosed Transaction”) and (Biii) within twelve (12) 12 months after following such termination, the Company either consummates such Takeover Proposal or Receptos enters into a definitive agreement with any third party with respect to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal any Competing Acquisition Transaction (whether as defined below) that is later consummated or not within such twelve (12) month period)any Competing Acquisition Transaction is consummated, then the Company shall upon pay to Parent $230,000,000 in cash (the consummation “Company Termination Fee”). A “Competing Acquisition Transaction” has the same meaning as an “Acquisition Transaction” except that (i) all references therein to (a) “more than 20%” shall be deemed to be references to “more than 50%” and (b) “less than 80%” shall be deemed to be references to “less than 50%,” and (ii) a Competing Acquisition Transaction shall not include a transaction of the type described in clause (iv) of the definition of Acquisition Transaction unless such transaction (1) is a Competing Acquisition Transaction without regard to clause (iv) of the definition of Acquisition Transaction, (2) is a Disclosed Transaction, or (3) together with other transactions entered into by the Receptos during such 12 month period, results in the grant of exclusive (or exclusive except as to Receptos and/or its subsidiaries) commercialization rights for a specified Receptos product for substantially all major markets. In the event that the Merger Agreement is terminated by Receptos due to an Alternative Transaction Termination, Receptos is also required to pay to Celgene the Company Termination Fee as a condition to the effectiveness of such Takeover Proposaltermination. In addition, in the event that the Merger Agreement is terminated by Celgene due to a Receptos Board Termination, Receptos is required to pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against to Celgene the Company Termination Fee. Parent Termination Fee. In the event that (i) the Merger Agreement is terminated by Celgene or Receptos due to (1) an Outside Date Termination or (2) an Antitrust Termination, (ii) at the time of such termination, the Antitrust Condition has not been satisfied, and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of (iii) the failure of the Mergers Antitrust Condition to be consummated, the Company Termination Fee satisfied did not result from any breach by wire transfer Receptos of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against covenants or obligations set forth in the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Merger Agreement, Celgene will (a) pay to Receptos $400,000,000 in cash and (b) enter into a loan agreement with Receptos pursuant to which it commits to loan Receptos up to an aggregate principal amount of $350,000,000. TABLE OF CONTENTS​ Expenses. All fees and expenses incurred in connection with the Mergers or Merger Agreement and the other transactions contemplated herebythereby will be paid by the party or parties, as applicable, incurring such expenses whether or not the Offer and/or the Merger is consummated.

Company Termination Fee. (i) If this Agreement is terminated by (A) an Acquisition Proposal (or intention to make an Acquisition Proposal) with respect to the Company shall have been communicated to the Company Board of Directors or publicly disclosed and, in the case of termination pursuant to Section 8.01(d8.1(h), not publicly withdrawn at least five (5) Business Days prior to the date of the Company Meeting, (B) Broadcom or by Parent the Company terminates this Agreement pursuant to Section 8.01(e), 8.1(b) or Broadcom terminates this Agreement pursuant to Section 8.1(d) or Section 8.1(h) and (C) before the Company shall within three date that is twelve (312) Business Days months after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any or a Company Subsidiary consummates a transaction described in the definition of their respective Affiliates“Acquisition Proposal” or enters into an Acquisition Agreement, shareholders or Representatives for any loss or damage suffered as a result then the Company shall, on the earlier of the failure of the Mergers date such transaction is consummated or any such Acquisition Agreement is entered into, pay or cause to be consummatedpaid to Broadcom a fee of $3,600,000,000 in cash (the “Company Termination Fee”). Solely for purposes of this Section 8.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 9.5, except that all references to “20%” therein shall be deemed to be references to “50%”. (ii) If Broadcom terminates this Agreement pursuant to Section 8.1(f), within two (2) Business Days after such termination the Company shall pay or cause to be paid to Broadcom the Company Termination Fee Fee. (iii) If the Company terminates this Agreement pursuant to Section 8.1(j), prior to or concurrently with such termination the Company shall pay or cause to be paid to Broadcom the Company Termination Fee. (iv) In the event any amount is payable by the Company pursuant to the preceding clause (i), (ii) or (iii), such amount shall be paid by wire transfer of immediately available funds. (ii) If this Agreement is terminated funds to an account designated in writing by either Broadcom. For the avoidance of doubt and notwithstanding anything herein to the contrary, in no event shall the Company or Parent pursuant be obligated to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundson more than one occasion. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated hereby.

Company Termination Fee. If: (i) If (A)(x) this Agreement is terminated by the Company pursuant to Section 8.01(d) or by Parent pursuant to Section 8.01(e7.4(a), the Company shall within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any covenant or agreement contained in this Agreement and (A) at any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s such right to terminate under Section 8.01(g), respectivelyof termination, a Takeover Company Acquisition Proposal has been publicly announced, publicly disclosed or otherwise communicated to the Company Board or any Person shall have been publicly announced or publicly made known otherwise communicated to the Company Special Committee Board an intention (whether or the shareholders of not conditional) to make such a Company Acquisition Proposal (and such Company Acquisition Proposal has not been withdrawn prior to such breach), or (y) this Agreement is terminated by Company or Parent pursuant to Section 7.2(c)(i), and prior to the Company Stockholder Meeting, a Company Acquisition Proposal has been publicly announced, publicly disclosed or otherwise publicly communicated to Company’s stockholders, or any Person shall have publicly announced an intention (whether or not conditional) to make such a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectivelyAcquisition Proposal, and (B) within twelve (12) 12 months after the date of such termination, the a transaction in respect of a Company either consummates such Takeover Acquisition Proposal is consummated or Company enters into a definitive agreement in respect of a Company Acquisition Proposal that is later consummated; provided that for all purposes of this Section 7.5(b)(i), all percentages included in the definition of “Company Acquisition Proposal” increased to consummate such Takeover Proposal and 50%; (ii) this Agreement is terminated by Parent pursuant to Section 7.4(c); or (iii) this Agreement is terminated by the Company thereafter consummates pursuant to Section 7.3(b); then, in any such Takeover Proposal event, Company shall pay to Parent the Company Termination Fee, it being understood that in no event shall Company be required to pay the Company Termination Fee on more than one occasion. Payment of the Company Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by Parent (whether or not within such twelve (12A) month periodat the time of consummation of any transaction contemplated by a Company Acquisition Proposal, in the case of a Company Termination Fee payable pursuant to Section 7.5(b)(i), then (B) as promptly as reasonably practicable after termination (and, in any event, within two business days thereof), in the case of a Company Termination Fee payable pursuant to Section 7.5(b)(ii), and (C) at the time of termination, in the case of a Company Termination Fee payable pursuant to Section 7.5(b)(iii). Other than with respect to fraud or Willful Breach, in the event that the Company Termination Fee becomes payable, then payment to Parent of the Company Termination Fee shall upon the consummation of such Takeover Proposal, pay be Parent, as liquidated damages and not as a penalty and as the ’s sole and exclusive remedy as liquidated damages for any and all losses or damages of Parent, Merger Sub I and Merger Sub II any nature against the Company and Company, its Subsidiaries and any each of their respective Affiliatesformer, shareholders current and future directors, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or Representatives future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing (collectively, the “Company Parties”) in respect of this Agreement, any agreement executed in connection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the failure of the Mergers to be consummatedconsummated or for a breach or failure to perform hereunder (whether intentionally, the Company Termination Fee by wire transfer of immediately available funds. (iiiunintentionally or otherwise) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such terminationotherwise, and upon payment of the such Company Termination Fee in accordance with this Section 8.02(b)Fee, none of the no Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Party shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers Agreement or the other transactions contemplated herebyhereby and thereby.

Company Termination Fee. (i) Section 8.4.1 If this Agreement is terminated by the Company pursuant to Section 8.01(d8.1(c)(ii) then the Company shall pay to Parent (or as directed by Parent Parent), by wire transfer of same day funds, $58,000,000 (the “Company Termination Fee”); provided, however, that such termination shall not be effective until the Company pays the Company Termination Fee. If this Agreement is terminated pursuant to Section 8.01(e8.1(d)(ii) then the Company shall pay to Parent (or as directed by Parent), by wire transfer of same day funds, the Company shall Termination Fee as promptly as reasonably practicable (and in any event within three (3) two Business Days following such termination). If this Agreement is terminated pursuant to Section 8.1(b)(i), then, in the event that, (a) at any time after the date of this Agreement and prior to such termination any Third Party shall have publicly made, proposed, communicated or disclosed an intention to make a bona fide Takeover Proposal, which bona fide Takeover Proposal was not retracted or rescinded prior to such termination, pay and (b) within twelve months of the termination of this Agreement, the Company or any Company Subsidiary enters into a definitive agreement with respect to a Takeover Proposal or any Takeover Proposal is consummated, then the Company shall pay, or cause to be paid, to Parent, by wire transfer of same day funds, the Company Termination Fee (provided that, in the event that the Company Termination Fee is paid, the amount of the Company Termination Fee shall be reduced dollar for dollar by the amount of any previously paid Parent Expenses), such payment to be made upon the earlier to occur of the execution of a definitive agreement relating to, or consummation of, such Takeover Proposal. In addition, if this Agreement is terminated pursuant to Section 8.1(b)(i), then the Company shall reimburse Parent and Merger Sub for the reasonable documented out-of-pocket costs, fees and expenses incurred by Parent or Merger Sub in connection with this Agreement and the Merger up to an amount not to exceed $11,500,000 in the aggregate (the “Parent Expenses”), with such reimbursement (i) payable by wire transfer of same day funds to Parent (or as liquidated damages directed by Parent) within two (2) Business Days following the date of such termination and not as (ii) credited on a penalty and as dollar-for-dollar basis against any subsequent Company Termination Fee that may thereafter be payable to Parent. For purposes of this Section 8.4.1, each reference in the definition of Takeover Proposal to “20 percent” will be deemed to be references to “50 percent.” Section 8.4.2 If paid, the Company Termination Fee (less the amount of any previously paid Parent Expenses) shall be the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II their Affiliates against the Company, any Company and its Subsidiaries Subsidiary and any of their respective Affiliates, shareholders or Representatives Company Representative for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available funds. (ii) If this Agreement is terminated by either the Company or Parent pursuant to Section 8.01(c) or by Parent pursuant to Section 8.01(g) as a result of a breach of any representation, warranty or covenant or agreement contained in this Agreement and (A) at by the Company, any time after the date hereof and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders of the Company Subsidiary or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal Company Representative and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period), then the Company shall upon the consummation of such Takeover Proposal, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers Merger to be consummatedconsummated and, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee (less the amount of any previously paid Parent Expenses) in accordance with this Section 8.02(b)8.4.1, none of the Company, any Company Subsidiary or any of its Affiliates or any of their respective partners, members, shareholders or Representatives Company Representative shall have any further liability or obligation to Parent, Merger Sub or any other Person relating to or arising out of this Agreement or the transactions contemplated by this Agreement. For the avoidance of doubt, in no event shall the Company be obligated to pay, or cause to be paid, the Mergers Company Termination Fee on more than one occasion and in no event shall the Company be obligated to reimburse Parent or Merger Sub for any Parent Expenses in addition to paying the Company Termination Fee. Section 8.4.3 The Company acknowledges that the agreements contained in this Section 8.4 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. If the Company fails to pay the Company Termination Fee or the other transactions contemplated herebyParent Expenses when due, and, in order to obtain such payment Parent commences a suit which results in a judgment against the Company for all or any portion of the Company Termination Fee or the Parent Expenses, the Company shall pay to Parent its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such suit.

Company Termination Fee. (i) If In the event this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii), the Company shall pay the Company Termination Fee to Parent prior to or simultaneously with such termination by wire transfer of same day funds to one or more accounts designated by Parent. (ii) or In the event this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii), the Company shall pay the Company Termination Fee to Parent promptly, but in any event within three two (32) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundssame day funds to one or more accounts designated by Parent. (iiiii) If In the event that (x) this Agreement is terminated (A) by either Parent or the Company or Parent pursuant to Section 8.01(c9.1(b)(ii) (due solely to a failure of the Minimum Condition to be satisfied at the time of the final expiration of the Offer) or (B) by Parent pursuant to Section 8.01(g9.1(d)(i) (other than any such termination solely as a result of a any breach or breaches of any covenant the Company’s representations and warranties due to facts or agreement contained circumstances existing or occurring prior to the date hereof), and prior to the time of such termination an Acquisition Proposal shall have been publicly announced, commenced or disclosed and shall not have been irrevocably and in this Agreement good faith withdrawn, and (Ay) at any time after the date hereof execution of this Agreement and prior to the expiration of the twelfth (12th) month after the termination of this Agreement, the Company Shareholders Meeting consummates an Acquisition Proposal or enters into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to an Acquisition Proposal that is subsequently consummated, or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, Company files a Takeover Proposal shall have been publicly announced or publicly made known to Solicitation/Recommendation Statement on Schedule 14D-9 that includes the Company Special Committee or the shareholders Board’s recommendation of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Acquisition Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after such termination, the Company either consummates such Takeover Proposal or enters into a definitive agreement to consummate such Takeover Proposal and the Company thereafter consummates such Takeover Proposal (whether or not within such twelve (12) month period)that is subsequently consummated, then the Company shall upon shall, on the consummation of date such Takeover ProposalAcquisition Proposal is consummated, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any Termination Fee (less the amount of their respective AffiliatesParent Expenses previously paid to Parent pursuant to Section 9.4(c)(i), shareholders if any) to Parent by wire transfer of same day funds to one or Representatives more accounts designated by Parent; provided, that for any loss purposes of this Section 9.4(b)(iii), all percentages in the definition of Acquisition Proposal shall be replaced with fifty percent (50%). (iv) For the avoidance of doubt, in no event shall the Company be obligated to pay, or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything on more than one occasion. Parent shall have right to assign the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the one or more Persons in its sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebydiscretion.

Company Termination Fee. (i) If In the event this Agreement is terminated by the Company pursuant to Section 8.01(d9.1(c)(ii), the Company shall pay the Company Termination Fee to Holdings prior to such termination by wire transfer of same day funds to one or more accounts designated by Holdings. (ii) or In the event this Agreement is terminated by Parent pursuant to Section 8.01(e9.1(d)(ii), the Company shall pay the Company Termination Fee to Holdings promptly, but in any event within three (3) Business Days after the date of such termination, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers to be consummated, the Company Termination Fee by wire transfer of immediately available fundssame day funds to one or more accounts designated by Holdings. (iiiii) If In the event that (A) this Agreement is terminated by either Parent or the Company or Parent pursuant to Section 8.01(c9.1(b)(i) or Section 9.1(b)(ii)(B) or by Parent pursuant to Section 8.01(g9.1(d)(i) as a result of a and Parent is not in material breach of any covenant or agreement contained in this Agreement at the time of such termination, (B) at or prior to the time of such termination an Acquisition Proposal shall have been publicly announced, commenced or disclosed or submitted or made known to the Company Board, and (AC) at any time after the date hereof execution of this Agreement and prior to the Company Shareholders Meeting or the breach giving rise to Parent’s right to terminate under Section 8.01(g), respectively, a Takeover Proposal shall have been publicly announced or publicly made known to the Company Special Committee or the shareholders expiration of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make a Takeover Proposal and such Takeover Proposal or such intent has not been publicly withdrawn or repudiated by such Person prior to the Company Shareholders Meeting or the breach, respectively, and (B) within twelve (12) months after the termination of this Agreement, the Company consummates an Acquisition Proposal or enters into a letter of intent, agreement in principle, definitive agreement or similar Contract with respect to an Acquisition Proposal that is subsequently (x) consummated at any time (for the avoidance of doubt, including consummation at any time after the twelve-month period following termination of this Agreement) or (y) terminated and, in connection with such termination, the Company either consummates such Takeover receives a fee (“Acquisition Proposal or enters into a definitive agreement to consummate such Takeover Proposal and Termination Fee”), the Company thereafter consummates shall, on the date such Takeover Acquisition Proposal (whether is consummated or not within such twelve (12) month periodAcquisition Proposal Termination Fee is received by the Company, pay the Company Termination Fee to Holdings by wire transfer of same day funds to one or more accounts designated by Holdings; provided that, for purposes of this Section 9.4(b)(iii), then all percentages in the definition of Acquisition Proposal shall be replaced with 50.1%. (iv) For the avoidance of doubt, in no event shall the Company shall upon the consummation of such Takeover Proposalbe obligated to pay, pay Parent, as liquidated damages and not as a penalty and as the sole and exclusive remedy of Parent, Merger Sub I and Merger Sub II against the Company and its Subsidiaries and any of their respective Affiliates, shareholders or Representatives for any loss or damage suffered as a result of the failure of the Mergers cause to be consummatedpaid, the Company Termination Fee by wire transfer of immediately available funds. (iii) Notwithstanding anything on more than one occasion. Holdings shall have right to assign the contrary contained in this Agreement, Parent’s right to receive payment of the Company Termination Fee pursuant to this Section 8.02(b) constitute the one or more Persons in its sole and exclusive remedy of Parent or any of its Affiliates against the Company, or any of its Affiliates or any of their respective partners, members, shareholders or Representatives for any and all losses that may be suffered based upon, resulting from or arising out of the circumstances giving rise to such termination, and upon payment of the Company Termination Fee in accordance with this Section 8.02(b), none of the Company or any of its Affiliates or any of their respective partners, members, shareholders or Representatives shall have any further liability or obligation relating to or arising out of this Agreement, the Mergers or the other transactions contemplated herebydiscretion.