Common use of Termination by Parent Clause in Contracts

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (iib) the Company shall have failed to take a vote of stockholders shareholders on approval of this Agreement within twenty-one (21) days following the Merger prior date on which the Proxy Statement is mailed to shareholders of the Termination DateCompany, (iiic) the Company or its board of directors (or any committee thereof) shall have (x) publicly approved or recommended, or shall have proposed to approve or recommend any Acquisition Proposal or (y) caused or permitted the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement, (d) the Company shall have failed to include in the Proxy Statement the Company Recommendation, (e) the Company or any of its Subsidiaries or their respective Representatives shall have breached in any material respect any of their obligations under Section 6.2, (f) at any time after the end of 10 ten (10) business days following receipt of an Acquisition Proposal, the Company’s Company board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five (5) business days) after receipt of any written request to do so from Parent, (ivg) a tender offer or exchange offer for outstanding shares of Company Common Stock Shares shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors of the Company recommends that the stockholders shareholders of the Company tender their shares in such tender or exchange offer or, within 10 ten (10) business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend unequivocally against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (bh) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2)Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within prior to the earlier of (A) 30 days after written notice thereof is given by Parent to the CompanyCompany or (B) two business days prior to the Termination Date, or (i) Parent delivers to the Company a notice in accordance with Section 6.12(c) advising the Company that the Aggregate Closing Funded Debt will be less than $600,000,000 and the Company shall have failed to waive irrevocably the condition set forth in Section 7.3(c) within the seventy-two (72) hour period referred to in Section 6.12(c).

Termination by Parent. This Agreement may be terminated upon written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time by Time, before or after any action of the board Board of directors Directors of Parent if Parent, if: (a) the Company shall have breached or failed to perform any of the representations, warranties, covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) the board conditions set forth in Section 7.3(a) or (b) would not be satisfied as of directors the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within ten (10) days following receipt by the Company of notice of such failure to comply; or (b) the Board of Directors of the Company or any committee thereof, shall have made withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendationthe Merger or this Agreement, (ii) the Company shall have failed to take a vote include in the Proxy Statement the recommendation of stockholders on the Board of Directors of the Company in favor of approval of the Merger prior to the Termination Dateand this Agreement, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposalin connection with a Rule 14d-9 disclosure, the Company’s board Board of directors Directors of the Company shall have failed to reaffirm its approval or recommendation taken any action other than a rejection of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parenta Rule 14d-9 proposal, (iv) a tender offer or exchange offer for outstanding shares the Board of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders Directors of the Company tender their shares in such tender or exchange offer orany committee thereof shall have recommended any Company Acquisition Proposal, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached or any of its obligations under officers or directors shall have entered into discussions or negotiations in violation of Section 6.2; 6.3 or (bvi) there has been a breach the Board of any representation, warranty, covenant or agreement made by Directors of the Company in this Agreement (other than Section 6.2), or any such representation and warranty committee thereof shall have become untrue after resolved to do any of the date of this Agreement, such that Section 7.2(aforegoing or (vii) any Company Acquisition Proposal is consummated or 7.2(b) would not be satisfied and such breach or condition an agreement with respect to any Company Acquisition Proposal is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Companysigned.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by action of the Board of Directors of Parent at any time prior to the Effective Time by action of the board of directors of Parent if (a) the Board of Directors of the Company takes any action contemplated by clause (iD) or (E) of Section 7.2, (b) the board Board of directors Directors of the Company shall have made a Change withdrawn or materially and adversely modified or, upon reasonable request from Parent or Merger Sub, shall fail to reaffirm, its adoption of Recommendation, (ii) this Agreement or its recommendation that the stockholders of the Company approve this Agreement (it being understood, however, that for all purposes of this Agreement, and without limitation, the fact that the Company, in compliance with this Agreement, has supplied any Person with information regarding the Company or has entered into discussions or negotiations with such Person as permitted by this Agreement, or the disclosure of such facts, shall have failed to take not be deemed a vote withdrawal or modification of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board Board of directors shall have failed to reaffirm its approval or Directors’ recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parentor this Agreement), (ivc) a tender offer or exchange offer for that, if successful, would result in any Person or “group” becoming a “beneficial owner” (such terms having the meaning in this Agreement as is ascribed under Regulation 13D under the Exchange Act) of thirty percent (30%) or more of the outstanding shares of Company Common Stock shall have been publicly disclosed is commenced (other than by Parent or an Affiliate affiliate of Parent) and the Board of Directors of the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer oroffer, (d) for any reason the Company fails to call or hold the Company Stockholders Meeting within 10 business six months of the date hereof (provided that if the F-4 Registration Statement shall not have become effective for purposes of the Securities Act by a date that is within four months of the date hereof, then such six month date shall be extended by such number of days after equal to the commencement date from the end of such tender or exchange offer, four month period until the Company board of directors fails to recommend against acceptance effective date of such offerF-4 Registration Statement); provided, or that Parent’s right to terminate this Agreement pursuant to this clause (vd) the Company shall have materially not be available to Parent if it has breached in any of material respect its obligations under Section 6.2this Agreement in any manner that shall have proximately caused the occurrence of the failure of the Company Stockholders Meeting to be called or held; provided further that this right to terminate shall not be available to Parent if as of the time this right to terminate would otherwise accrue, the Company’s right to terminate this Agreement has accrued and remains in force as of such time under another provision hereof or (be) there has been a material breach by the Company of any material representation, warranty, covenant or agreement made by the Company contained in this Agreement (other than such that the condition in Section 6.28.2(a) or Section 8.2(b), or any such representation and warranty shall have become untrue after as the date of this Agreementcase may be, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition that is not curable or, if curable, is not cured within 30 twenty (20) days after written notice thereof of such breach is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if Parent: (a) (i) the board Company Board shall have failed to recommend approval of directors the Company Voting Proposal in the Proxy Statement or shall have withheld, withdrawn, qualified or modified its recommendation of the Company Voting Proposal in a manner adverse to Parent (it being understood and agreed that the taking of a neutral position or no position with respect to an Acquisition Proposal beyond the Acquisition Proposal Assessment Period shall be considered an adverse modification) or the Company shall have made breached its obligations under Section 7.5 or, in any event, failed to take a Change vote of Recommendationits stockholders with respect to the Company Voting Proposal prior to the Termination Date (it being further understood and agreed that, any “stop-look-and-listen” communication by the Company Board to the Company’s stockholders pursuant to Rule 14d-9 of the Exchange Act or any similar communication to the Company stockholders in connection with the commencement of a tender offer or exchange offer containing the substance of a “stop-look-and-listen” communication pursuant to Rule 14d-9 shall not be deemed to constitute withdrawal, qualification or modification (it being further understood that any such “stop-look-and-listen” communication pursuant to Rule 14d-9 beyond the Acquisition Proposal Assessment Period shall be considered an adverse modification)), (ii) the Company Board shall have failed approved, recommended or adopted (or publicly announced its intention to take a vote of stockholders on the Merger prior to the Termination Dateany such action) any Acquisition Proposal, (iii) at any time after the end of 10 business days following receipt of an Acquisition ProposalProposal Assessment Period, the Company’s board of directors Company Board shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days(5) Business Days) after receipt of any written request to do so from Parent, or (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors Board recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days ten (10) Business Days after the commencement of such tender or exchange offer, the Company board of directors Board fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or or (b) if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a8.2(a) or 7.2(b8.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 twenty (20) days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time before the Effective Time: (a) prior to the Effective Time by action of Requisite Company Vote, if the board of directors of Company Board or the Special Committee withdraws, modifies or amends the Company Board Recommendation (or the Special Committee recommends that the Company Board take any such action) in any manner adverse to Parent or the Company Board or the Special Committee publicly proposes to do so; (b) prior to the Requisite Company Vote, if (a) (i) the board of directors of Company Board or the Company shall have made Special Committee approves, endorses or recommends a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval Takeover Proposal or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request publicly proposes to do so from Parent, or (ivii) a tender offer or exchange offer for that if consummated would result in any Person(s) beneficially owning 20% or more of any class of equity securities of the Company then outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced and the Company board of directors Board or Special Committee recommends that in favor of, or within ten (10) Business Days after the stockholders of commencement thereof the Company tender their shares in Board fails to recommend against, such tender offer or exchange offer or, within 10 business days after the commencement of such tender by its stockholders or exchange offer, the Company board of directors fails Board or the Special Committee publicly proposes to recommend against acceptance of such offer, or do so; or (vc) if the Company shall have materially breached breaches any of its obligations under representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition to Closing set forth in Section 6.2; 6.2(a) or Section 6.2(b) and (ii) (A) is not capable of being cured prior to the Termination Date or (bB) there has not been a breach of any representation, warranty, covenant or agreement made cured by the Company in this Agreement within twenty (other than Section 6.2), or any such representation and warranty shall have become untrue 20) Business Days after the date Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in breach of their respective representations, warranties, covenants or agreements contained in this Agreement, such that which breach would give rise to the failure of a condition to Closing set forth in Section 7.2(a6.3(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the CompanySection 6.3(b).

Termination by Parent. This Agreement Plan may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if Parent: (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2)Plan, or any such representation and warranty shall have become untrue after the date of this AgreementPlan, such that that, individually or together with other such breaches or failures of a representation to be true, Section 7.2(a6.2(a) or 7.2(b6.2(b) would not be satisfied and such breach or condition failure of a representation to be true is not curable by the Termination Date or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company; (b) if the Merger shall not have been consummated by the twelve month anniversary of the date hereof (the “Termination Date”), provided that the right to terminate this Plan shall not be available if Parent or Merger Sub has breached in any material respect its obligations under this Plan in any manner that shall have proximately and substantially contributed to the failure of the Merger to be consummated; (c) if (1) the board of directors of the Company submits this Plan to its stockholders without a recommendation for approval, otherwise withdraws or modifies (or publicly discloses its intention to withdraw or modify) its recommendation referred to in Section 5.2(b) in any manner adverse to Parent, or approves, recommends, or otherwise declares advisable or proposes to or publicly discloses its intention to approve, recommend or declare advisable an Acquisition Proposal other than the Merger, or (2) the Company has failed to substantially comply with its obligations under Section 5.2 or Section 5.6; (d) if the approval of the Company’s stockholders required by Section 6.1(a) shall not have been obtained at the Company Meeting; (e) if any order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger, or the denial of any consent, registration, approvals, permits and authorizations the failure of which to obtain would cause the condition set forth in Section 6.1(b) not to be satisfied as of the Closing, shall become final and non-appealable (whether before or after the approval by the stockholders of the Company).

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have breached or failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but perform in any event within five business days) after receipt material respect any of any written request to do so from Parentthe covenants and agreements set forth in Section 5.04, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under the actions specified in this Section 6.27.03(a); or or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.26.02(a) or Section 6.02(b), or any such representation and warranty shall have become untrue after the date of this Agreementas applicable, such that Section 7.2(a) or 7.2(b) would not be satisfied and and, in either such case, such breach or condition is not curable or, if curable, is not incapable of being cured within by the End Date; provided that Parent shall have given the Company at least 30 days after written notice thereof is given by Parent prior to the Companysuch termination stating Parent’s intention to terminate this Agreement pursuant to this Section 7.03(b).

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have breached or failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but perform in any event within five business days) after receipt material respect any of any written request to do so from Parentthe covenants and agreements set forth in Section 6.03, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that the shall not have sent to its stockholders of the Company tender their shares in within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under actions specified in this Section 6.2; or 8.03(a); (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.27.02(a) or Section 7.02(b), or any such representation and warranty shall have become untrue after the date of this Agreementas applicable, such that Section 7.2(a) or 7.2(b) would not be satisfied and and, in either such case, such breach or condition is not curable incapable of being cured by the End Date; provided that Parent shall have given the Company at least 15 days written notice prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 8.03(b); (c) if the Company fails to conduct the Company Stockholder Meeting within the time period set forth in Section 6.04(a); or (d) at any time after the Company has obtained the Required Company Vote and Parent has obtained the affirmative vote of the holders of the requisite number of the outstanding shares of Parent Common Stock at the Parent Stockholder Meeting, in each case, approving the Merger and the other transactions contemplated by this Agreement, if curable, the Average Closing Price of the Parent Common Stock is not cured below $2.15; provided that within 30 days after five (5) Business Days of delivery of a termination notice pursuant to this Section 8.03(d) Company may provide written notice thereof is given by to Parent of its desire to move forward with the CompanyClosing, in which case, the definition of “Average Closing Price” shall be $2.15 for purposes of the Closing and Parent shall not be entitled to terminate this Agreement pursuant to this Section 8.03(d).

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time Offer Completion Date, whether or not the Parent Stockholder Approval has been obtained, by action of the board of directors of Parent Parent, if (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a material breach of any representation, warranty, covenant or agreement made by the Company of any representation or warranty contained in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition which is not curable or, if curable, is not cured within 30 15 calendar days after written notice thereof of such breach is given by Parent to the Company and such breach had or could reasonably be likely to have a Company Material Adverse Effect, (b) there has been a material breach of any of the covenants set forth in this Agreement on the part of the Company, which breach is not curable or, if curable, is not cured within 15 calendar days after written notice of such breach is given by Parent to the Company, (c) the Board of Directors or any committee thereof of the Company shall have (i) withdrawn or modified in a manner adverse to Parent or Purchaser its approval or recommendation of this Agreement, the Offer or the Merger or failed to reconfirm its approval or recommendation within five Business Days after a written request from Parent to do so, or (ii) approved or recommended, or proposed publicly to approve or recommend, a third-party Company Takeover Proposal to the Stockholders, or (iii) authorized or caused the Company to enter into a Company Acquisition Agreement, or (iv) resolved to take any of the foregoing actions, (d) the Company or any of its officers, directors, employees, representatives or agents shall have taken any of the actions proscribed by Section 5.2 in a manner that constitutes a material breach thereof, or (e) the Parent Stockholder Approval shall not have been obtained at the Parent Stockholders Meeting.

Termination by Parent. This Agreement may be terminated by Parent upon written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time by Time, before or after any action of the board Board of directors Directors of Parent if Parent, if: (a) the Company shall have breached or failed to perform any of the representations, warranties, covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) the board conditions set forth in Section 7.3(a) or (b) would not be satisfied as of directors the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within twenty (20) business days following receipt by the breaching party of notice of such failure to comply; (i) the Board of Directors of the Company or any committee thereof, shall have made withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendationthe Merger or this Agreement, (ii) the Company shall have failed to take a vote include in the Proxy Statement the recommendation of stockholders on the Board of Directors of the Company in favor of approval of the Merger prior to the Termination Dateand this Agreement, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposalin connection with a Rule 14d-9 disclosure, the Company’s board Board of directors Directors of the Company shall have failed to reaffirm its approval or recommendation taken any action other than a rejection of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parenta Rule 14d-9 proposal, (iv) a tender offer or exchange offer for outstanding shares the Board of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders Directors of the Company tender their shares in such tender or exchange offer orany committee thereof shall have recommended any Company Acquisition Proposal, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached or any of its obligations under officers or directors shall have entered into discussions or negotiations in violation of Section 6.2; , (vi) the Board of Directors of the Company or any committee thereof shall have resolved to do any of the foregoing or (bvii) there any Company Acquisition Proposal is consummated or an agreement with respect to any Company Acquisition Proposal is signed; or (c) if Szlam has breached the Voting Agreement in any material respect, or if the Voting Agreement has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not determined to be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Companyunenforceable.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if Time: (a) if, prior to the time the Requisite Company Vote is obtained, the Company Board (acting upon the recommendation of the Special Committee) fails to make, withdraws, modifies or amends in any manner adverse to Parent, the Company Board Recommendation; (b) if (i) the board of directors Special Committee or the Company Board (acting upon the recommendation of the Company shall have made Special Committee) approves, endorses or recommends a Change of RecommendationSuperior Proposal, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for any outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders capital stock of the Company tender their shares in such tender is commenced and the Special Committee or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board Board (acting upon the recommendation of directors the Special Committee) fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (for purposes hereof, taking of no position with respect to the acceptance of such tender offer or exchange offer by its stockholders shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, ) or (viii) the Company (acting upon the recommendation of the Special Committee), the Special Committee or the Company Board (acting upon the recommendation of the Special Committee) publicly announces its intention to do any of the foregoing; (c) if the Special Committee or the Company Board (acting upon the recommendation of the Special Committee) exempts any Person other than the Parent or any of its Affiliates from the provisions of Section 203 of the DGCL; or (d) if the Company shall have materially breached any of its obligations under representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.26.2(a) or Section 6.2(b) and (ii) has not been cured by the Company within thirty (30) Business Days after the Company’s receipt of written notice of such breach from Parent; provided, that Parent shall not have a right to terminate this Agreement pursuant to this Section 7.3(d) if Parent or (b) there has been a Merger Sub is then in material breach of any representation, warranty, agreement or covenant or agreement made by the Company contained in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if if: (a) (i) the board of directors of the Company shall have made a Change of Recommendationwithdraws, modifies, qualifies or amends the Company Board Recommendation in any manner adverse to Parent, (ii) the board of directors of the Company shall have failed to take a vote approves, endorses or recommends any Takeover Proposal in respect of stockholders on the Merger prior to the Termination DateCompany, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares that constitutes a Takeover Proposal in respect of the Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten Business Days after commencement, or (viv) the Company shall have materially breached or its board of directors publicly announce an intention to do any of the foregoing; (b) the Company breaches any of its covenants in Section 5.4 hereof in any material respect; (c) a Company Material Adverse Effect occurs following the date of the Original Agreement; (d) the Company breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) has not been cured by the Company within 20 Business Days after the Company’s receipt of written notice of such breach from Parent; or (e) prior to obtaining the Requisite Parent Vote, provided Parent has complied with its obligations under Section 6.2; or 5.4 (bincluding Section 5.4(d)(ii)) there has been in all material respects, in order to enter into a breach Contract providing for a Superior Proposal, provided that the terms of any representation, warranty, covenant or agreement made by the Company in such Superior Proposal require Parent to terminate this Agreement (other than Section 6.2), or any as a condition to consummation of such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the CompanySuperior Proposal.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by action of the Board of Directors of Parent, at any time prior to the Effective Time Time, before or after the approval by action the stockholders of the board of directors of Parent if Company, if: (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote comply in any material respect with any of stockholders on the Merger covenants or agreements contained in Articles I and V of this Agreement to be complied with or performed by the Company at or prior to such date of termination; provided, however, that, if such failure to comply is capable of being cured prior to the Termination DateEffective Time, such failure shall not have been cured within 20 days of the delivery to the Company of written notice of such failure; (iiib) at there exists a breach or breaches of any time after representation or warranty of the end Company contained in this Agreement such that the Closing condition set forth in Section 7.01 would not be satisfied; provided, however, that if such breach or breaches are capable of 10 business being cured prior to the Effective Time, such breaches shall not have been cured within 20 days following receipt of an Acquisition Proposal, delivery to the Company’s board Company of directors shall have failed written notice of such breach or breaches; (c) the Board of Directors of the Company (i) fails to reaffirm its recommend the approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parentthe Company's stockholders, (ivii) withdraws or amends or modifies in a tender offer manner adverse to Parent its recommendation or exchange offer for outstanding shares approval in respect of Company Common Stock shall have been publicly disclosed this Agreement or the Merger or (iii) makes any recommendation with respect to an Acquisition Transaction (including making no recommendation or stating an inability to make a recommendation), other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in a recommendation to reject such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offerAcquisition Transaction, or (v) the Board of Directors of the Company shall have materially breached resolved to take any of the foregoing actions referred to in this clause and publicly discloses such resolution; or (d) the Company or its representatives shall furnish or disclose non-public information to, or negotiate, discuss, explore or otherwise communicate in any way with, a Third Party with respect to an Acquisition Transaction, or the Board of Directors of the Company shall have resolved to take any of the foregoing actions referred to in this clause and publicly discloses such resolution; provided, however, that in such event Parent shall have no right to terminate pursuant to this clause (d) until the earlier of (i) June 29, 1998 and (ii) the 30th calendar day after the date on which the Company or any of its obligations under Section 6.2representatives first takes any of the foregoing actions referred to in this clause (d) (the "Trigger Date") and, in each case, only if the Company and its representatives have not terminated all such activities prior to the Trigger Date; provided, further, that if, at any time after the Trigger Date, a Ziconotide Event shall have occurred and be continuing and each of the conditions set forth in Articles VI, VII and VIII shall have been satisfied or (b) there has been a breach of any representation, warranty, covenant or agreement made waived by the Company in this Agreement (party or parties entitled to the benefit of such conditions, other than Section 6.2any condition which shall not have been satisfied solely as a result of such Ziconotide Event (the "Satisfaction Date"), or any such representation and warranty then Parent shall have become untrue after no right to terminate pursuant to this clause (d) during the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent period from the 14th calendar day following the Satisfaction Date to the Company44th calendar day following the Satisfaction Date and only if the Company and its representatives have not terminated all such activities prior to such 44th day.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time Time, by action of the board Board of directors Directors of Parent if if: (a) (A) at any time prior to the adoption of this Agreement by the Company’s stockholders satisfying the condition set forth in Section 7.1(a), (i) the board Board of directors Directors of the Company shall have made a Company Change of Recommendation, Recommendation or (ii) the Company’s Board of Directors shall have failed to reconfirm the Company Recommendation following a 5% Holder’s public announcement of opposition to the Merger or the other transactions contemplated hereby within the period of time beginning upon the Company’s receipt of a written request by Parent to do so and ending on the date that is ten (10) business days after the Company’s receipt of such request (unless Parent has previously made at least two (2) such written requests and the Board of Directors of the Company has complied with each of such requests), (B) either (i) the Company shall have failed to convene and hold the Company Stockholders Meeting prior to the later of the date that is forty-five (45) days after the date as of which the SEC staff has confirmed that it has no additional comments on the Proxy Statement (subject to adjournment from time to time as permitted by Section 6.4) or (ii) the minimum number of Company Shares necessary to constitute a quorum for the transaction of business shall have been represented in person or by proxy at the Company Stockholders Meeting and the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Dateand this Agreement at such meeting, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (ivC) a tender offer or exchange offer for outstanding shares of Company Common Stock Shares shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board Company’s Board of directors Directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 ten (10) business days after the commencement of such tender or exchange offer, the Company board Company’s Board of directors Directors fails to recommend against acceptance of that the Company’s stockholders not tender any shares into such tender or exchange offer, (D) the Company’s Board of Directors shall have recommended to the stockholders of the Company any Acquisition Proposal or (vE) the Company shall have materially breached or any of its obligations under Section 6.2Subsidiaries shall have entered into a letter of intent, agreement in principle, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar Contract relating to an Acquisition Proposal; or or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2)Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, in each case such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if Time: (a) if the Board of Directors of the Company withdraws, modifies or amends the Company Board Recommendation in any manner adverse to Parent; (b) if (i) the board Board of directors Directors of the Company shall have made approves, endorses or recommends a Change of RecommendationTakeover Proposal, (ii) the Company shall have failed enters into a Contract relating to take a vote of stockholders on the Merger prior to the Termination DateTakeover Proposal, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for any outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders capital stock of the Company tender their shares in such tender or exchange offer or, within 10 business days after is commenced prior to obtaining the commencement Requisite Company Vote and the Board of such tender or exchange offer, Directors of the Company board of directors fails to recommend against acceptance of such tender offer or exchange offer by its shareholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten business days after commencement, (iv) any person solicits proxies of shareholders of the Company prior to obtaining the Requisite Company Vote and the Board of Directors of the Company fails to recommend against acceptance of such solicitation by its shareholders (including, for these purposes, by taking no position with respect to the acceptance of such solicitation by its shareholders, which shall constitute a failure to recommend against acceptance of such solicitation) within ten business days after commencement, or (v) the Company shall have materially breached or its Board of Directors publicly announces its intention to do any of the foregoing; or (c) if the Company breaches any of its obligations under representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.2; 9.2(a), 9.2(b) or 9.2(c) and (bii) there has not been a breach of any representation, warranty, covenant or agreement made cured by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue within ten business days after the date Company's receipt of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and written notice of such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Companyfrom Parent.

Termination by Parent. This Agreement may be terminated upon --------------------- written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval by holders of Parent Shares, by action of the board Board of directors Directors of Parent if Parent, if: (a) the Company shall have breached or failed to perform any of the representations, warranties, covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) the condition set forth in Section 7.3(a) or (b), would not be satisfied as of the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within twenty (20) business days following receipt by the breaching party of notice of such failure to comply; or (b) (i) the board Board of directors Directors of the Company or any committee thereof, shall have made withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendationthe Merger or this Agreement, (ii) the Company shall have failed to take a vote include in the Proxy Statement the recommendation of stockholders on the Board of Directors of the Company in favor of approval to the Merger prior to the Termination Dateand this Agreement, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposalin connection with a Rule 14d-9 disclosure, the Company’s board Board of directors Directors of the Company shall have failed to reaffirm its approval or recommendation taken any action other than a rejection of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parenta Rule 14d-9 proposal, (iv) a tender offer or exchange offer for outstanding shares the Board of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders Directors of the Company tender their shares in such tender or exchange offer orany committee thereof shall have recommended any Company Acquisition Proposal, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached or any of its obligations under officers or directors shall have entered into discussions or negotiations in violation of Section 6.2; , (vi) the Board of Directors of the Company or any committee thereof shall have resolved to do any of the foregoing or (bvii) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition Acquisition Proposal is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Companyconsummated.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if (a) By Parent: (i) the board if Company breaches or fails to perform in any material respect any of directors of the Company shall have made a Change of Recommendationits representations, warranties or covenants, which breach or failure to perform (iiA) the Company shall have failed to take a vote of stockholders on the Merger prior would give rise to the Termination Datefailure of a condition set forth in Section 5.02(a) or Section 5.02(b), and (iiiB) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval cannot be cured or recommendation of this Agreement and the Merger as promptly as practicable has not been cured within thirty (but in any event within five business days30) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement giving of written notice to Company of such tender or exchange offerbreach, provided that Parent and Acquisition Sub shall not have the Company board of directors fails right to recommend against acceptance of such offer, or (vterminate this Agreement pursuant to this Section 6.01(c)(i) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a if then in material breach of any of representation, warranty, covenant or agreement made contained in this Agreement; or (ii) if the Board of Directors of Company (A) shall have failed to include the Company Board Recommendation in the Proxy Statement or shall have withdrawn, modified or changed (it being understood and agreed that any "stop-look-and-listen" communication by the Board of Directors of Company in this Agreement (other than Section 6.2)to the shareholders of Company pursuant to Rule 14d-9(f) of the Exchange Act, or any such representation and warranty similar communication to the shareholders of Company in connection with the commencement of a tender offer or exchange offer containing the substance of a "stop-look-and-listen" communication pursuant to Rule 14d-9(f), shall have become untrue after the date not be deemed to constitute a withdrawal, modification or change of its recommendation of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent the Company Board Recommendation in any manner adverse to the CompanyTransactions, to Parent or to Acquisition Sub, or (B) shall have approved or recommended to the shareholders of Company any Acquisition Proposal other than the Transactions contemplated hereby.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if Parent: (a) (i) the board of directors Company Board shall have failed to recommend approval of the Company Voting Proposal in the Proxy Statement or shall have made withheld, withdrawn, qualified or modified its recommendation of the Company Voting Proposal in a Change manner adverse to Parent (it being understood that the taking of Recommendationa neutral position or no position with respect to an Acquisition Proposal beyond the Acquisition Proposal Assessment Period shall be considered an adverse modification, and it being further understood and agreed that for purposes of this Agreement a factually accurate public statement by the Company that does no more than describe the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto shall not, in and of itself, be deemed a withdrawal, qualification or modification, or proposal by the Company Board to withdraw, qualify or modify the Company Board’s recommendation of this Agreement or the transactions contemplated hereunder, or an approval or recommendation with respect to such Acquisition Proposal), (ii) the Company Board shall have failed approved, recommended or adopted (or publicly announced its intention to take a vote of stockholders on the Merger prior to the Termination Dateany such action) any Acquisition Proposal, (iii) at any time after the end of 10 business days following receipt of an Acquisition ProposalProposal Assessment Period, the Company’s board of directors Company Board shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days(5) Business Days) after receipt of any written request to do so from Parent, or (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors Board recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days ten (10) Business Days after the commencement of such tender or exchange offer, the Company board of directors Board fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or or (b) if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2)Agreement, or any such representation and or warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a8.2(a) or 7.2(b8.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 twenty (20) days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have breached or failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but perform in any event within five business days) after receipt material respect any of any written request to do so from Parentthe covenants and agreements set forth in Section 5.04, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under actions specified in this Section 6.27.03(a); or or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.26.02(a) or Section 6.02(b), or any such representation and warranty shall have become untrue after the date of this Agreementas applicable, such that Section 7.2(a) or 7.2(b) would not be satisfied and and, in either such case, such breach or condition is not curable or, if curable, is not incapable of being cured within by the End Date; provided that Parent shall have given the Company at least 30 days after written notice thereof prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 7.03(b) and provided that the Parent shall not be entitled to terminate this Agreement pursuant to this Section 7.03(b) within the ten (10) Business Day period contemplated by Section 7.03(a) and provided that the Parent shall not be entitled to terminate this Agreement pursuant to this Section 7.03(b) if it is given by Parent then in breach of any representation, warranty, covenant or agreement hereunder that would cause the conditions set forth in Section 6.03(a) or 6.03(b) not to the Companybe satisfied.

Termination by Parent. This Agreement may be terminated and the Merger Transaction may be abandoned at any time prior to the Effective Time by action Time, whether before or after the receipt of the board approval of directors of Parent if the Company Securityholders required by Section 7.01(c), by written notice given to the Company by Parent: (a) if the Company or its Board of Directors shall have (i) withdrawn, modified or amended in any respect adverse to Parent the board of directors of Recommendation or failed to reconfirm the Company shall have made a Change of RecommendationRecommendation (as required by Section 6.02(g)), (ii) the Company shall have failed approved, publicly recommended or entered into an agreement with respect to, or consummated, or adopted a resolution to take approve, publicly recommend, enter into an agreement with respect to, or consummate, any Competing Transaction from a vote person other than Parent or any of stockholders on the Merger prior to the Termination Dateits Affiliates, (iii) failed to publicly recommend rejection of any Competing Transaction (as required by Section 6.02(g)), or (iv) failed to include in the Circular the Recommendation; (b) at any time after prior to the end of 10 business days following receipt of an Acquisition ProposalEffective Date, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) if there is a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than material breach by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company it contained in this Agreement (other than Section 6.2), or if any such representation and or warranty made by the Company shall have become untrue after the date of this Agreementmaterially untrue, in either case such that the conditions set forth in Section 7.2(a) or 7.2(b7.02(a) would not be satisfied and as of the time of such breach or condition as of the time such representation or warranty shall have become materially untrue, provided, that if such inaccuracy in the Company's representations and warranties or breach by the Company is curable by the Company through the exercise of its reasonable commercial efforts, Parent may not curable or, if curable, is not cured within 30 days terminate this Agreement under this Section 8.04(b) for 20 Business Days after delivery of written notice thereof is given by from Parent to the CompanyCompany of such breach, provided that the Company continues to exercise reasonable commercial efforts to cure such breach (it being understood that Parent may not terminate this Agreement pursuant to this paragraph (b) if such breach is cured during such 20 Business Day period); (c) at any time prior to the Effective Date, if there is a material breach by a Company Insider of any representation, warranty, covenant or agreement made by it contained in a Support Agreement or if any representation or warranty made by a Company Insider shall have become materially untrue, provided, that if such inaccuracy in the Company Insider's representations and warranties or breach by the Company Insider is curable by the Company Insider through the exercise of its reasonable commercial efforts, Parent may not terminate this Agreement under this Section 8.04(c) for 20 Business Days after delivery of written notice from Parent to the Company Insider of such breach, provided that the Company Insider continues to exercise reasonable commercial efforts to cure such breach (it being understood that Parent may not terminate this Agreement pursuant to this paragraph (c) if such breach is cured during such 20 day business period); (d) if the Company or its Board of Directors shall have approved, publicly recommended or entered into an agreement with respect to, or consummated, or adopted a resolution to approve, publicly recommend, enter into an agreement with respect to, or consummate, a Superior Proposal; or (e) holders of shares of Company Common Stock representing in the aggregate 7.5% or more of the issued and outstanding Company Common Stock immediately prior to the Effective Date have validly exercised Dissent Rights.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of Time: (a) if the board of directors of Parent the Company fails to make, withdraws or modifies in any manner adverse to Parent, the Company Board Recommendation; (b) if (a) (i) the board of directors of the Company shall have made approves, endorses or recommends a Change of RecommendationSuperior Proposal, (ii) the Company shall have failed enters into an agreement in principle, arrangement or understanding or a Contract relating to take a vote of stockholders on the Merger prior to the Termination DateSuperior Proposal, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for any outstanding shares of capital stock of the Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten Business Days of the commencement thereof, or (iv) the board of directors of the Company shall exempt any other Person from the provisions of Section 203 of the DGCL, (v) the board of directors of the Company shall exempt any other Person under the Company Rights Agreement, (vi) the board of directors of the Company or the Company at the direction of the board of directors of the Company makes any communication to the stockholders of the Company that is materially inconsistent with the Company Board Recommendation (in a manner that is adverse to Parent) or (vii) the Company or its board of directors publicly announces its intention to do any of the foregoing; (c) if the board of directors of the Company shall have materially breached refused to affirm its approval or recommendation of this Agreement of the Merger within five Business Days of any written request from Parent or there shall have been a breach by the Company of its representations or warranties contained in Section 3.24 of this Agreement; (d) if the chief executive officer or the chief financial officer of the Company fails to provide the necessary certifications when due, under Sections 302 or 906 of the Sarbanes Oxley Act of 2002; (e) if the Company breaches any of its obligations under representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.2; 6.2(a) or 6.2(b) and (bii) there is not curable or has not been a breach of any representation, warranty, covenant or agreement made cured by the Company in this Agreement within twenty (other than Section 6.2)20) Business Days after the Company's receipt of written notice of such breach from Parent; or (f) if, on or any such representation and warranty prior to March 31, 2004, the Company shall have become untrue not publicly filed its Annual Report on Form 10-K for the fiscal year ending December 27, 2003, containing the audited consolidated financial statements of the Company and its consolidated Subsidiaries for such period and accompanied by an opinion of PricewaterhouseCoopers LLP, in its capacity as the Company's independent accountants, that is free of any qualifications or, if at any time after the date hereof, there is any restatement of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company's consolidated financial statements.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if Time: (a) if the Company Board withdraws, modifies or amends the Company Board Recommendation in any manner adverse to Parent; (b) if (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for any outstanding shares of capital stock of the Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors Board fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten Business Days after commencement, or (vii) the Company shall have materially breached or Company Board publicly announces its intention to not do so; (c) if the Company Board exempts any Person other than Parent or any of its obligations under Affiliates from the provisions of Section 6.2; 203 of the DGCL; (d) if the Company breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breach (bi) there would give rise to the failure of a condition set forth in Section 6.2(a) through Section 6.2(c) and (ii) has not been a breach of any representation, warranty, covenant or agreement made cured by the Company in within 20 Business Days after the Company’s receipt of written notice of such breach from Parent; provided, however, that Parent shall not have the right to terminate this Agreement if the Company has breached or been notified of a breach by it of the New Financing Facility unless and until the lender under the Credit Facility has declared a default under the Credit Facility and accelerated the Company’s obligations thereunder; (other than Section 6.2), e) if a Company Material Adverse Effect occurs; (f) if one or any such representation and warranty more Key Company Intellectual Property Assets become materially impaired as a result of one or more acts and/or omissions of Company; (g) if the lender under the Credit Facility shall have become untrue after declared a default and accelerated the date of this Agreement, such that Section 7.2(aobligations thereunder; or (h) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Companya Company Bankruptcy Event occurs.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action of the board of directors of Parent if Company Stockholders): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have breached or failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but perform in any event within five business days) after receipt material respect any of any written request to do so from Parentthe covenants and agreements set forth in Section 5.8 hereof, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Exchange Act, within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under the actions specified in this Section 6.2; or 8.3(a); (b) if there has been a breach of breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by the Company in pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 6.3 hereof, and such breach, inaccuracy or failure is incapable of being cured by the End Date or, if capable of being so cured, has not been cured by the Company within ten (10) Business Days of the Company’s receipt of written notice of such breach, inaccuracy or failure from Parent (stating Parent’s intention to terminate this Agreement pursuant to this Section 8.3(b)); provided, however, that there is not then a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Parent or Aquarion MergerCo pursuant this Agreement that would give rise to the failure of any of the conditions specified in Section 7.3 hereof; or (c) if (i) the conditions set forth in Article VII hereof (other than Section 6.2)conditions that by their nature are to be satisfied at the Closing) have been satisfied, (ii) Parent has irrevocably confirmed by written notice to the Company that all conditions set forth in Article VI hereof have been satisfied or that Parent is willing to waive any such representation unsatisfied conditions in Article VI hereof and warranty (iii) the Merger shall not have become untrue been consummated within five (5) Business Days after the date of this Agreement, delivery of such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Companynotice.

Termination by Parent. This Agreement may be terminated and the Merger may be Transactions abandoned at any time prior to the Effective Time Time, by action written notice of the board of directors of Parent if Parent, if (a) (i) the board Board of directors of the Company Directors shall have (A) made a Change of Recommendation, (iiB) approved or recommended to the stockholders of the Company an Acquisition Proposal or (C) failed to reaffirm the Company Board Recommendation within ten (10) Business Days after both (x) an Acquisition Proposal or any material modification thereto shall first have been made public or sent or given to the stockholders of the Company (or any Person shall have failed publicly announced a an intention, whether or not conditional, to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of make an Acquisition Proposal, ) and (y) the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any a written request to do so from Parent, (ivii) a tender offer the Company or exchange offer for outstanding shares the Board of Company Common Stock Directors shall have been publicly disclosed approved or recommended, or entered into or authorized the Company to enter into, a letter of intent, agreement in principle or definitive agreement with respect to an Acquisition Proposal (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer orAcceptable Confidentiality Agreement), within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (viii) the Company shall have materially breached failed to include in the Proxy Statement the Company Board Recommendation or (iv) the Company or its Board of Directors (or any committee thereof) shall have authorized or publicly proposed any of the foregoing; (b) the Company shall have breached its obligations under Section 6.25.2 or Section 5.3(b) in any material respect; or or (bc) there has been a breach the representations and warranties of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), shall not be true and correct or any such representation and warranty the Company shall have become untrue after the date breached or failed to perform any of its covenants or agreements set forth in this Agreement, such that the conditions set forth in Section 7.2(a6.2(a) or 7.2(band 6.2(b) would not be satisfied and such failure to be true and correct, breach or condition is failure to perform cannot curable orbe cured by the Company by the Walk-Away Date, or if curablecapable of being cured, is shall not have been cured within 30 days after following receipt by the Company of written notice thereof of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.2 and the basis for such termination (or, if earlier, the Walk-Away Date); provided that, Parent or Merger Sub is given by Parent not then in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to the CompanyClosing set forth in Section 6.1 or Section 6.3 not being satisfied.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if if: (a) (i) the board of directors of the Company shall have made a Change of Recommendationwithdraws, modifies, qualifies or amends the Company Board Recommendation in any manner adverse to Parent, (ii) the board of directors of the Company shall have failed to take a vote approves, endorses or recommends any Takeover Proposal in respect of stockholders on the Merger prior to the Termination DateCompany, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares that constitutes a Takeover Proposal in respect of the Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten Business Days after commencement, or (viv) the Company shall have materially breached or its board of directors publicly announce an intention to do any of the foregoing; (b) the Company breaches any of its covenants in Section 5.4 hereof in any material respect; (c) a Company Material Adverse Effect occurs following the date hereof; (d) the Company breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) has not been cured by the Company within 20 Business Days after the Company’s receipt of written notice of such breach from Parent; or (e) prior to obtaining the Requisite Parent Vote, provided Parent has complied with its obligations under Section 6.2; 5.4 (including Section 5.4(d)(ii)) in all material respects, in order to enter into a Contract providing for a Superior Proposal, provided that the CSR plc Annual Report and Financial Statements 2010 AGREEMENT AND PLAN OF MERGER (continued) consideration payable to Parent or (b) there has been a breach Parent’s stockholders pursuant to such Superior Proposal consists solely of any representationcash, warrantyand provided, covenant or agreement made by further, that the Company in terms of such Superior Proposal require Parent to terminate this Agreement (other than Section 6.2), or any as a condition to consummation of such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the CompanySuperior Proposal.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Company Merger Effective Time by action of the board of directors of Parent if Time: (a) if there occurs any Company Adverse Recommendation Change solely in response to an Intervening Event; (b) if (i) the board of directors of the Company shall have made (or any Authorized Committee) approves, endorses or recommends a Takeover Proposal, or there occurs a Company Adverse Recommendation Change in response to or in connection with the Company's receipt of Recommendationa Takeover Proposal, or (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for any outstanding shares of capital stock of the Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced prior to obtaining the Requisite Company Vote and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, ) within ten (10) Business Days after commencement (provided that no "stop-look-and-listen" communication or similar communication shall be deemed to be a failure to recommend against acceptance or the taking of no position with respect to acceptance hereunder) or (viii) the Company shall have materially breached or its board of directors (or any Authorized Committee) publicly announces its intention to do any of the foregoing; or (c) if none of the Purchaser Parties is in material breach of its obligations under this Agreement and the Company breaches (A) any of the covenants and agreements contained in Section 6.2; 5.4 hereof (in the case of Sections 5.4(a)(1), 5.4(a)(2), 5.4(b), and the first three (3) sentences of 5.4(c), such breaches to be in any material respect) or (bB) there any of its other representations, warranties, covenants or agreements contained in this Agreement, which breach, in the case of clause (B) only, (i) has not been a breach of any representation, warranty, covenant or agreement made cured by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue within 20 Business Days after the date Company's receipt of this Agreement, written notice of such breach from Parent and (ii) is of such a nature that a condition set forth in Section 7.2(a6.2(a) or 7.2(bSection 6.2(b) would not be incapable of being satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the CompanyEnd Date.

Termination by Parent. This Agreement may be terminated and the Merger and other transactions contemplated hereby may be abandoned at any time prior to the Effective Time Time, notwithstanding approval thereof by action of the board of directors of Company Stockholders, by Parent if if: (a) the results of Parent’s business and legal due diligence into the Company are not satisfactory to Parent, as determined in Parent’s sole discretion; (b) Parent is not in material breach of its obligations or representations and warranties under this Agreement, and if: (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time any of the representations and warranties of the Company herein are or become untrue or inaccurate such that Section 7.2(a) would not be satisfied (treating such time as if it were the Effective Time for purposes of this Section 10.2(c)); or (ii) there has been a breach on the part of the Company of any of its covenants or agreements contained in this Agreement such that Section 7.2(b) will not be satisfied (treating such time as if it were the Effective Time for purposes of this Section 10.2(b)), and (iii) in both cases, such breach (if curable) has not been cured within fifteen (15) days after notice thereof to the end Company; (c) in the event of 10 business days following receipt a material breach of an Acquisition Proposala Voting Agreement by a Key Stockholder; (d) in the event that the Company, the Board of Directors of the Company’s board of directors , or any authorized committee thereof, shall have have: (i) approved, recommended or entered into an agreement for any acquisition proposal other than the Merger; (ii) failed to present and recommend, and, if requested, to reaffirm its recommendation for the approval or recommendation and adoption of this Agreement and the Merger as promptly as practicable to the Company Stockholders, or withdrawn or modified its recommendation or approval of the Merger in a manner adverse to Parent; (but iii) failed to distribute the Information Statement when it is available for mailing or to include in the Information Statement the recommendation of the Merger by the Board of Directors of the Company, or any event within five business days) after receipt of any written request to do so from Parent, authorized committee thereof; (iv) failed to call a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders meeting of the Company tender their shares in such tender Stockholders to approve the Merger or exchange offer or, within 10 business days after to present the commencement of such tender or exchange offer, Merger for approval by the Company board of directors fails to recommend against acceptance of such offer, or Stockholders; (v) the Company shall have materially otherwise breached any provision of its obligations under Section 6.2this Agreement; or (bvi) there has been a breach resolved to do any of any representation, warranty, covenant or agreement made by the foregoing; or (e) in the event the Company in this breaches the Non-Solicitation Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Confidentiality Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time Offer Completion Date by action of the board Board of directors Directors of Parent Parent, if (a) (i) the board of directors representations and warranties of the Company set forth in the Agreement which are not qualified by "materiality" or "Company Material Adverse Effect" shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement not be true and the Merger as promptly as practicable (but correct in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offerall material respects, or (v) the representations and warranties that are qualified by "materiality" or "Company Material Adverse Effect" shall have materially breached any of its obligations under Section 6.2not be true and correct in all respects; or (b) there has been a provided that such breach of any representation, warranty, covenant representation or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 the earlier of (i) 10 calendar days after written notice thereof of such breach is given by Parent to the Company or (ii) the Expiration Date; or (b) there has been a material breach or failure to perform of any of the covenants set forth in this Agreement on the part of the Company, which breach is not curable or, if curable, is not cured within the earlier of (i) 10 calendar days after written notice of such breach is given by Parent to the Company and (ii) the Expiration Date; or (c) (i) the Board of Directors or any committee thereof of the Company shall have (A) failed to recommend or withdrawn or modified in a manner adverse to Parent or Purchaser its approval or recommendation of this Agreement, the Offer or the Merger or (B) approved or recommended, or proposed publicly to approve or recommend, a Company Takeover Proposal to the Stockholders or shall have resolved to do any of the foregoing, or (ii) the Company shall have entered into a Company Acquisition Agreement or the Company Board shall have authorized the Company to do so; or (d) any person, entity or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired beneficial ownership of more than 20% of any class or series of capital stock of the Company, through the acquisition of stock, the formation of a group or otherwise, or shall have been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of more than 20% of any class or series of capital stock of the Company (other than Holdings and its Affiliates), or Holdings and its Affiliates shall have acquired additional Shares after the date hereof.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if (a) (i) the board By Parent, if Company breaches or fails to perform in any material respect any of directors of the Company shall have made a Change of Recommendationits representations, warranties or covenants, which breach or failure to perform (iiA) the Company shall have failed to take a vote of stockholders on the Merger prior would give rise to the Termination Datefailure of a condition set forth in Section 5.02(a) or 5.02(b), and (iiiB) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval cannot be cured or recommendation of this Agreement and the Merger as promptly as practicable (but in any event has not been cured within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business 15 days after the commencement giving of written notice to Company of such tender or exchange offerbreach, provided that Parent and Acquisition Sub shall not have the Company board of directors fails right to recommend against acceptance of such offer, or (vterminate this Agreement pursuant to this Section 6.01(c)(i) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a if then in material breach of any of representation, warranty, covenant or agreement made contained in this Agreement; or (ii) By Parent, if the Board of Directors of Company (A) shall have failed to include the Company Board Recommendation in the Proxy Statement or shall have withdrawn, modified or changed (it being understood and agreed that any “stop-look-and-listen” communication by the Board of Directors of Company to the shareholders of Company pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the shareholders of Company in connection with the commencement of a tender offer or exchange offer containing the substance of a “stop-look-and-listen” communication pursuant to Rule 14d-9(f), shall not be deemed to constitute a withdrawal, modification or change of its recommendation of this Agreement Agreement) the Company Board Recommendation in any manner adverse to the Transactions, to Parent or to Acquisition Sub, or shall have resolved to effect any of the foregoing, or (B) shall have approved or recommended to the shareholders of Company any Acquisition Proposal other than the Transactions contemplated hereby, or shall have resolved to effect any of the foregoing; or (C) shall have failed to call, convene and hold the Shareholders Meeting or a failed to prepare and mail to its shareholders the Proxy Statement in accordance with this Agreement; or (D) Company Board of Directors shall have approved any transaction (other than Section 6.2), the Transactions) to render inapplicable to such transaction the provisions of the Rights Agreement or any such representation and warranty shall have become untrue after restrictive provision of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including, without limitation, Sections 180.1130 through 180.1150, inclusive, of the WBCL) or any restrictive provision of any applicable anti-takeover provision in Company’s Articles of Incorporation or By-Laws; or (iii) By Parent, if since the date of this Agreement, there shall have been any event, condition, change or development, or worsening of any existing event, condition, change or development, that, individually or in combination with any other event, condition, change, development or worsening thereof, has had or could reasonably be expected to have a Material Adverse Effect; provided, however, that Parent shall not have the right to take any such that action or to terminate this Agreement pursuant to this Section 7.2(a6.01(c)(iii), and any purported termination pursuant to this Section 6.01(c)(iii) shall be void and of no force or 7.2(beffect, unless prior to any such termination (1) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after Parent has provided Company with written notice thereof not later than 15 days prior to such termination stating that it intends to terminate this Agreement pursuant to this Section 6.01(c)(iii) and specifying in reasonable detail the basis for its intention to do so, and (2) during the five Business Day period following the delivery of the notice referred to in clause (1), Company is given by Parent unable to the Companycure such Material Adverse Effect.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at At any time prior to the Effective Time Time, this Agreement may be terminated by Parent, by action of the board its Board of directors of Parent if Directors, if: (a) (i) there has been a material breach by the board Company of directors any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of the Company shall have made become untrue, in either case such that the conditions set forth in Section 6.3(a) would not be satisfied and (ii) such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given by Parent to the Company; provided, however, that the right to terminate this Agreement pursuant to this Section 7.4(a) shall not be available to Parent if it, at such time, is in material breach of any representation, warranty, covenant or agreement set forth in this Agreement such that the conditions set forth in Section 6.2(a) shall not be satisfied; (b) prior to obtaining the Company Requisite Vote, (i) the Company’s Board of Directors shall have failed to unanimously recommend approval of the Company Voting Proposal within one business day after receipt of a Change Fairness Opinion to the effect that the Merger Consideration is fair, from a financial point of Recommendationview, to the holders of the Company Common Shares (other than Parent and its Subsidiaries); (ii) the Company’s Board of Directors shall have withdrawn or modified its recommendation of the Company Voting Proposal (iii) the Company’s Board of Directors shall have failed to take a vote reconfirm its recommendation of stockholders on the Merger prior to the Termination Date, (iii) at any time Company Voting Proposal within five days after the end of 10 business days following receipt of an Acquisition Proposal, Parent requests in writing that the Company’s board Board of directors Directors do so; (iv) the Company’s Board of Directors (or any committee thereof) shall have failed approved or recommended to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable Company’s stockholders a Company Acquisition Proposal (but in any event within five business days) after receipt of any written request to do so from Parent, other than the Merger); (ivv) a tender offer or exchange offer for outstanding shares of Company Common Stock Shares shall have been publicly disclosed commenced (other than by Parent or an Affiliate of Parent) and the Company board Company’s Board of directors Directors (or any committee thereof) recommends that the Company’s stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or ; (vvi) the Company shall have materially breached any of its obligations under Section 6.25.4 or 5.5; or (bvii) there has been a breach of for any representation, warranty, covenant or agreement made by the Company in this Agreement reason (other than Section 6.2), as a result of the action or any such representation and warranty inaction of Parent) the Company shall have become untrue after failed to hold the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied Company Stockholders Meeting and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent submit the Company Voting Proposal to the Company’s stockholders by the date which is one business day prior to the Outside Date; or (c) the Company’s Financial Advisor shall have withdrawn, modified, withheld or changed the Fairness Opinion to the effect that the Merger Consideration is no longer fair, from a financial point of view, to the holders of Company Common Shares (other than Parent and its Subsidiaries).

Termination by Parent. This Agreement may be terminated terminated, and the Merger transactions contemplated by this Agreement may be abandoned abandoned, at any time prior to the Effective Time Offer Closing (notwithstanding any approval of this Agreement by action of the board of directors of Parent if Target’s stockholders) by Parent: (a) if, prior to the Offer Closing (i) the board of directors of the Company shall have made a Target Adverse Recommendation Change of Recommendationhas occurred (other than in accordance with Section 7.04(e)), (ii) the Company shall have failed to take Target has entered into a vote of stockholders on the Merger prior to the Termination DateTarget Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time the Target Board fails to reaffirm (publicly, if so requested by Parent) the Target Board Recommendation within ten (10) days after the end of 10 business days following receipt of an Acquisition Proposal, date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company’s board of directors shall have failed Target or the Person making such Takeover Proposal or fails to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parenttake a neutral position with respect thereto, (iv) a tender offer or exchange offer for outstanding shares of Company relating to Target Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends Target shall not have sent to its stockholders pursuant to Rule 14e-2 under the Securities Act, within ten (10) Business Days after such tender offer or exchange offer is first published, a statement (A) reaffirming the Target Board Recommendation and recommending that the Target’s stockholders of the Company tender their shares in reject such tender or exchange offer or, within 10 business days after the commencement of or (B) taking a neutral position with respect to such tender offer or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have Target or the Target Board (or any committee thereof) publicly announces its intentions to do any of actions specified in Section 9.03(a)(i) or Section 9.03(a)(ii); or (b) if, prior to the Offer Closing, the Target materially breached breaches or fails to perform in any material respect any of its obligations under Section 6.2; representations, warranties, covenants or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company other agreements set forth in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that which breach or failure to perform would give rise to the failure of a condition set forth in Section 7.2(a) or 7.2(b) would not be satisfied 8.01 (and in each case such breach or condition failure to perform is not curable orincapable of being cured by the Outside Date, or if curable, is has not been cured within 30 days fifteen (15) Business Days after its receipt of written notice thereof is from Parent); provided that Parent will have given by Parent the Target at least three (3) Business Days’ written notice prior to the Companysuch termination stating Parent’s intention to terminate this Agreement pursuant to this Section 9.03(b).

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have Made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 ten (10) business days following receipt of an Acquisition Proposal, the Company’s Company board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days(5) Business Days) after receipt of any written request to do so from Parent, or (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 ten (10) business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend unequivocally against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2)Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company; or (c) if the Company or any of the other Persons described in Section 6.2 as a Representative of the Company shall take any of the actions that would be proscribed by Section 6.2 but for the proviso therein allowing certain actions to be taken pursuant to clause (A), (B) or (C) of the proviso under the conditions set forth therein.

Termination by Parent. This Agreement may be terminated upon written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval by holders of Parent Shares, by action of the board Board of directors Directors of Parent if Parent, if: (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote comply in any material respect with any of stockholders on the Merger covenants or agreements contained in this Agreement to be complied with or performed by the Company at or prior to the Termination Datesuch date of termination, which failure to comply has not been cured within five (iii5) at any time after the end of 10 business days following receipt by the breaching party of notice of such failure to comply; (b) any representation or warranty of the Company contained in this Agreement shall not be true in all material respects when made or, if a representation or warranty relates to a particular date, shall not be true in all material respects as of such date (provided such breach is capable of being cured and has not been cured within five (5) business days following receipt by the breaching party of notice of the breach) or on and as of the Effective Time as if made on and as of the Effective Time; or (c) (i) the Board of Directors of the Company amends, withholds or withdraws its recommendation of the Merger in a manner adverse to Parent or Merger Sub or shall have resolved or publicly announced or disclosed to any third party its intention to recommend or enter into an agreement or any agreement in principal with respect to an Acquisition ProposalProposal (or a proposal or offer therefor), or (ii) the Merger is not submitted to the Company’s board 's stockholders as contemplated by this Agreement (provided that Parent is not in material breach of directors shall have failed to reaffirm its approval or recommendation the terms of this Agreement and the Merger as promptly as practicable this Agreement has not otherwise been terminated pursuant to this Article VIII), or (but in any event within five business days) after receipt of any written request to do so from Parent, (iviii) a tender offer or exchange offer for twenty percent (20%) or more of the outstanding shares of the Company Common Stock Shares shall have been publicly disclosed commenced or a registration statement with respect thereto shall have been filed (other than by Parent or of an Affiliate of Parentaffiliate thereof) and the Board of Directors of the Company board of directors recommends shall have (A) recommended that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of or (B) publicly announced its intention to take no position with respect to such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if Closing: (a) if (i) the board of directors Strategic Planning Committee or the Acquiror Board (acting upon the recommendation of the Company shall have made Strategic Planning Committee) approves, endorses or recommends a Change of RecommendationTakeover Proposal, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for any outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate capital stock of Parent) the Acquiror is commenced and the Company board of directors recommends that Strategic Planning Committee or the stockholders Acquiror Board (acting upon the recommendation of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors Strategic Planning Committee) fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (for purposes hereof, taking of no position with respect to the acceptance of such tender offer or exchange offer by its stockholders shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, ) or (viii) the Company Acquiror (acting upon the recommendation of the Strategic Planning Committee), the Strategic Planning Committee or the Acquiror Board (acting upon the recommendation of the Strategic Planning Committee) publicly announces its intention to do any of the foregoing; (b) if the Strategic Planning Committee or the Acquiror Board (acting upon the recommendation of the Strategic Planning Committee) exempts any Person other than Parent or any of its Affiliates from the provisions of Section 203 of the DGCL; or (c) if the Acquiror shall have materially breached any of its obligations under representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.25.2(a) or Section 5.2(b) and (ii) has not been cured by the Acquiror within thirty (30) Business Days after the Acquiror’s receipt of written notice of such breach from Parent; provided, that Parent shall not have a right to terminate this Agreement pursuant to this Section 6.3(c) if Parent or (b) there has been a any other Transferring Party is then in material breach of any representation, warranty, agreement or covenant or agreement made by the Company contained in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendation, occurred; (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination Date, Company Acquisition Agreement (other than an Acceptable Confidentiality Agreement); (iii) at the Company shall have breached or failed to perform in any time material respect any of the covenants and agreements set forth in Section 5.06; (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the end of 10 business days following receipt of an Acquisition date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable ; (but in any event within five business days) after receipt of any written request to do so from Parent, (ivv) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, ; or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under actions specified in this Section 6.2; or 7.03(a); (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.26.02(a) or Section 6.02(b), or any such representation and warranty shall have become untrue after the date of this Agreementas applicable, such that Section 7.2(a) or 7.2(b) would not be satisfied and and, in either such case, such breach or condition is not curable or, if curable, is not incapable of being cured within 30 days after by the End Date; provided that Parent shall have given the Company at least ten days’ written notice thereof is given prior to such termination stating (i) Parent’s intention to terminate this Agreement pursuant to this Section 7.03(b), and (ii) that the Company may cure any such breach before the End Date in the event the Company reasonably deems such breach as capable of being so cured; (c) if there shall have been any acceleration of any obligation or demand of immediate payment of any obligation of the Company under any Company Loan identified as a “Primary Loan” on Section 8.01(a) of the Company Disclosure Letter, in each case other than by reason of an AME Default; provided, however, that the Company may not enter into any forbearance agreement or similar agreement or any amendment to any existing forbearance agreement or similar agreement with any lender without the prior written consent of Parent to the Company(which consent shall not be unreasonably withheld, conditioned or delayed); or (d) there shall have been a Company Material Adverse Effect.

Termination by Parent. This Agreement may be terminated by Parent --------------------- upon written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval (if necessary) of the issuance of the Parent Shares in connection with the Merger by the stockholders of Parent, by action of the board of directors of Parent if Parent, if: (a) the Company shall have breached or failed to perform any of the covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) the conditions set forth in Section 7.3(a) or (b) would not be --------------------- satisfied as of the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within twenty (20) business days following receipt by the Company of notice of such breach or failure to be true; or (b) (i) the board of directors of the Company or any committee thereof, shall have made withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendationthe Merger or this Agreement, (ii) the Company shall have failed to take a vote include in the Proxy Statement the recommendation of stockholders on the Merger prior to board of directors of the Termination DateCompany in favor of adoption of this Agreement, (iii) at any time after the end of 10 business days following receipt of in connection with a Rule 14d-9 disclosure concerning an unsolicited Company Acquisition Proposal, the Company’s board of directors of the Company shall have failed to reaffirm its approval or recommendation taken any action other than a rejection of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parentsuch proposal, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer orany committee thereof shall have recommended to the Company's shareholders any Company Acquisition Proposal, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the board of directors of the Company or any committee thereof shall have materially breached resolved to do any of its obligations under Section 6.2; the foregoing, or (bvi) there has been a breach any Company Acquisition Proposal is consummated or an agreement with respect to any Company Acquisition Proposal is validly signed on behalf of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if Parent: (a) if, prior to the time the Requisite Company Vote is obtained, (iA) the board of directors of the Company Board shall have made a Change of Recommendation, (ii) the Company Recommendation or shall have failed approved or recommended to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, an Acquisition Proposal; (B) the Company board of directors fails Board shall have failed to include the Company Recommendation in the Proxy Statement or shall have effected a Company Adverse Recommendation Change; (C) the Company Board shall have failed to recommend against acceptance any publicly announced Acquisition Proposal and reaffirm the Company Recommendation, in each case, within ten business days following the public announcement of such offer, or Acquisition Proposal and in any event at least two business days prior to the Stockholders Meeting; (vD) the Company shall have materially breached any of its obligations under Section 6.2enters into an Alternative Acquisition Agreement; or (E) the Company or the Company Board shall have publicly announced its intention to do any of the foregoing; (b) at any time prior to the Effective Time, whether such date is before or after the time the Requisite Company Vote is obtained, if there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that which breach (i) would give rise to the failure of a condition set forth in Section 7.2(a) or 7.2(b) would and (ii) (x) cannot be satisfied and cured by the Company by the Termination Date or (y) if capable of being cured, shall not have been cured (A) within 30 calendar days following receipt of written notice from the Parent of such breach or condition (B) any shorter period of time that remains between the date the Parent provides written notice of such breach and the Termination Date; provided that, Parent shall not have the right to terminate this Agreement pursuant to this Section 8.4(b) if it is then in breach of any representation, warranties, covenants or other agreements hereunder that would result in the closing conditions set forth in Sections 7.3(a) or 7.3(b) not curable being satisfied; or (c) at any time prior to the time the Requisite Company Vote is obtained, if curablethe Company shall have breached or failed to perform in any material respect its obligations set forth in Section 6.2, is which breach or failure to perform cannot be cured by the Company by the Termination Date or if capable of being cured, shall not have been cured (A) within 30 two business days after following receipt of written notice thereof from the Parent of such breach or (B) any shorter period of time that remains between the date the Parent provides written notice of such breach and the Termination Date; provided that, Parent shall not have the right to terminate this Agreement pursuant to this Section 8.4(c) if it is given by Parent to then in breach of any of its representations, warranties, covenants or other agreements hereunder that would result in the Companyclosing conditions set forth in Sections 7.3(a) or 7.3(b) not being satisfied.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent, at any time prior to the Effective Time by action of the board of directors of Parent if Acceptance Time: (a) if (i) the board of directors of a Company Adverse Recommendation Change shall have occurred, or the Company shall have made publicly proposed to make a Change of RecommendationCompany Adverse Recommendation Change, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within five (5) Business Days after the end of 10 business days following receipt of an Acquisition date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (iv) there shall have been a material breach of the Company’s board of directors shall have failed to reaffirm its approval obligations under Section 6.04 or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (ivv) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its shareholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within five (5) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that shareholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or or (b) if prior to the Acceptance Time, there has shall have been a breach of any representation, warranty, covenant or agreement made on the part of the Company set forth in this Agreement that (i) would give rise to the failure of any Offer Condition set forth in clause (vii) or (viii) of Annex III and (ii) such breach cannot be or is not cured by the earlier of (x) thirty (30) days following receipt by the Company of written notice of such breach and (y) the End Date; provided, that Parent is not then in material breach of any representation, warranty, agreement or covenant contained in this Agreement (other than Section 6.2)Agreement; and provided, or any such representation and warranty further that Parent shall have become untrue after given the date of this Agreement, such that Section 7.2(aCompany at least thirty (30) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent prior to the Companysuch termination stating Parent’s intention to terminate this Agreement pursuant to this Section 8.03(b).

Termination by Parent. This Agreement may be terminated (prior to obtaining the Required Company Vote in the case of clause (b)(ii) below) and the Merger transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time by action Parent if: (a) there is a breach by the Company of any representation, warranty, covenant or agreement contained in this Agreement that, individually or in the aggregate, would give rise to a failure of a condition set forth in Sections 8.02(a) or 8.02(b), which has not been cured, or is not capable of being cured, within thirty (30) Business Days following receipt by the Company of written notice of such breach; (b) (i) prior to receipt of the Required Company Vote, the board of directors of the Company (or any authorized committee thereof) shall have failed to recommend or shall have withdrawn, modified or amended or shall have proposed to withdraw, modify or amend, in any manner adverse to Parent, its recommendation that the Company shareholders vote in favor of the transactions contemplated by this Agreement (or publicly announce any intention to do so), unless the Blackstone Funds shall have confirmed to Parent in writing that they will vote in favor of such transactions notwithstanding such failure, withdrawal, modification, amendment or proposal (provided that if the Blackstone Funds fail to do so, Parent shall be entitled to receive the Company Termination Fee under Section 9.05(c) hereof) or (a) (iii) the board of directors of the Company (or any authorized committee thereof) shall have made a Change approved or recommended any Acquisition Proposal (or resolved to do so); (c) upon any breach by the Company of Recommendationits obligations under Section 6.02 to (i) call, give notice of, convene and hold the Company Shareholders Meeting as contemplated thereby, which has not been cured (or is not capable of being cured) within fifteen (15) Business Days following receipt by the Company of written notice of such breach or (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its recommend approval or recommendation of this Agreement and the Merger as promptly as practicable transactions contemplated hereby; or (but in any event within five business days) after receipt of any written request to do so from Parent, (ivd) a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock shall have been publicly disclosed Shares is commenced (other than by Parent or a Subsidiary thereof), or an Affiliate of ParentAcquisition Proposal (including any revision thereto) is otherwise publicly announced, and the Company Company's board of directors (or any authorized committee thereof) recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of or otherwise fails to recommend that such stockholders reject such tender offer or exchange offer, or such Acquisition Proposal (or revision) as the case may be, within the 10 Business Day period specified in Rule 14e-2(a) under the Exchange Act (or within 17 Business Days of such announcement of such other Acquisition Proposal (or revision)); provided, however, for purposes of this Section 9.04(d) the reference in the definition of Acquisition Proposal to "more than 10%" of the capital stock or consolidated assets, net revenue or net income of the Company board of directors fails and its Subsidiaries shall be deemed to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been be a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other reference to "more than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company20%" thereof.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if if: (a) (i) the board of directors of the Company shall have made a Change of Recommendationwithdraws, modifies, qualifies or amends the Company Board Recommendation in any manner adverse to Parent, (ii) the board of directors of the Company shall have failed to take a vote approves, endorses or recommends any Takeover Proposal in respect of stockholders on the Merger prior to the Termination DateCompany, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares that constitutes a Takeover Proposal in respect of the Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten Business Days after commencement, or (viv) the Company shall have materially breached or its board of directors publicly announce an intention to do any of the foregoing; (b) the Company breaches any of its covenants in Section 5.4 hereof in any material respect; (c) a Company Material Adverse Effect occurs following the date hereof; (d) the Company breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) has not been cured by the Company within 20 Business Days after the Company’s receipt of written notice of such breach from Parent; or (e) prior to obtaining the Requisite Parent Vote, provided Parent has complied with its obligations under Section 6.2; 5.4 (including Section 5.4(d)(ii)) in all material respects, in order to enter into a Contract providing for a Superior Proposal, provided that the consideration payable to Parent or (b) there has been a breach Parent’s stockholders pursuant to such Superior Proposal consists solely of any representationcash, warrantyand provided, covenant or agreement made by further, that the Company in terms of such Superior Proposal require Parent to terminate this Agreement (other than Section 6.2), or any as a condition to consummation of such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the CompanySuperior Proposal.

Termination by Parent. This Agreement may also be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time by action of the board of directors of Parent if Time: (a) if (i) the board of directors of the Company Board shall have made a Change withdrawn, modified or amended in any manner adverse to Parent or Merger Sub any of Recommendationits recommendations described in Section 4.1(a) hereof, (ii) the Company or the Company Board shall have failed to take approved, recommended or entered into an agreement, arrangement or understanding with respect to, or consummated, any Acquisition Proposal from a vote Person other than Parent or any of stockholders on the Merger prior to the Termination Dateits affiliates, (iii) at any time after the end of 10 business days following receipt of an Company Board in response to such Acquisition Proposal, the Company’s board shall not have recommended rejection of directors shall have failed to reaffirm its approval such Acquisition Proposal within ten Business Days of commencement of such Acquisition Proposal or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request by the Parent to do so from Parentso, or (iv) resolved to do any of the actions described in (i), (ii) or (iii) of this Section 6.2(a) or publicly announced its intention to do any of such actions; or (b) upon a tender offer material breach of any covenant or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed agreement (other than by Parent or an Affiliate of ParentSection 4.4) and on the Company board of directors recommends that the stockholders part of the Company tender their shares set forth in this Agreement, or if (i) any representation or warranty of the Company set forth herein that is qualified as to materiality or Material Adverse Effect shall have become untrue or (ii) any such tender representation or exchange offer orwarranty of the Company that is not so qualified shall have become untrue in any material respect, within 10 business if such false representation or warranty (together with any other false representations or warranties) would be reasonably be expected to have a Material Adverse Effect on the Company (each, a "Terminating Company Breach"); provided, however, that, if such Terminating Company Breach is reasonably capable of being cured by the Company no later than ten calendar days after Parent has furnished the commencement Company with written notice of such tender or exchange offerTerminating Company Breach through the exercise of reasonable best efforts, so long as the Company board of directors fails continues to recommend against acceptance exercise such reasonable best efforts, Parent may not terminate this Agreement under this Section 6.2(b) prior to the expiration of such offer, or ten-day period; or (vc) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been upon a breach of any representation, warranty, covenant or agreement made provision of Section 4.4 by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date Representative of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have breached or failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but perform in any event within five business days) after receipt material respect any of any written request to do so from Parentthe covenants and agreements set forth in Section 5.04, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under actions specified in this Section 6.27.03(a); or or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.26.02(a) or Section 6.02(b), or any such representation and warranty shall have become untrue after the date of this Agreementas applicable, such that Section 7.2(a) or 7.2(b) would not be satisfied and and, in either such case, such breach or condition is not curable or, if curable, is not incapable of being cured within by the End Date; provided that Parent shall have given the Company at least 30 days after written notice thereof is given by Parent prior to the Companysuch termination stating Parent's intention to terminate this Agreement pursuant to this Section 7.03(b).

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Change in Company Recommendation shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have breached or failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but perform in any event within five business days) after receipt material respect any of any written request to do so from Parentthe covenants and agreements set forth in Section 6.04, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within ten Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under actions specified in this Section 6.28.03(a); or or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.27.02(a) or Section 7.02(b), or any such representation and warranty shall have become untrue after the date of this Agreementas applicable, such that Section 7.2(a) or 7.2(b) would not be satisfied and and, in either such case, such breach or condition is not curable incapable of being cured by the End Date or, if curable, is has not been cured in all material respects by the Company within 30 days after its receipt of written notice thereof is given by from Parent (or, if less than 30 days prior to the CompanyEnd Date, prior to the End Date).

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent, at any time prior to the Effective Time by action of the board of directors of Parent if Acceptance Time: (a) if (i) the board of directors of a Company Adverse Recommendation Change shall have occurred, or the Company shall have made publicly proposed to make a Change of RecommendationCompany Adverse Recommendation Change, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within five (5) Business Days after the end of 10 business days following receipt of an Acquisition date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) there shall have been a material breach of the Company's obligations under Section 6.04 or (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its shareholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within five (5) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that shareholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or or (b) if prior to the Acceptance Time, there has shall have been a breach of any representation, warranty, covenant or agreement made on the part of the Company set forth in this Agreement that (i) would give rise to the failure of any Offer Condition set forth in clause (vii) or (viii) of Annex III and (ii) such breach cannot be or is not cured by the earlier of (x) thirty (30) days following receipt by the Company of written notice of such breach and (y) the End Date; provided, that Parent is not then in material breach of any representation, warranty, agreement or covenant contained in this Agreement (other than Section 6.2)Agreement; and provided, or any such representation and warranty further that Parent shall have become untrue after given the date of this Agreement, such that Section 7.2(aCompany at least thirty (30) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent prior to the Companysuch termination stating Parent's intention to terminate this Agreement pursuant to this Section 8.03(b).

Termination by Parent. This Agreement may be terminated by Parent upon written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval (if necessary) of the issuance of the Parent Shares in connection with the Merger by the stockholders of Parent, by any action of the board Board of directors Directors of Parent if Parent, if: (a) the Company shall have breached or failed to perform any of the covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) 59 63 the conditions set forth in Section 7.3(a) or (b) would not be satisfied as of the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within twenty (20) business days following receipt by the Company of notice of such failure to comply; or (b) (i) the board of directors of the Company or any committee thereof, shall have made withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendationthe Merger or this Agreement, (ii) the Company shall have failed to take a vote include in the Proxy Statement the recommendation of stockholders on the Merger prior to board of directors of the Termination DateCompany in favor of adoption of this Agreement, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposalin connection with a Rule 14d-9 disclosure, the Company’s board of directors of the Company shall have failed to reaffirm its approval or recommendation taken any action other than a rejection of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parenta Rule 14d-9 proposal, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer orany committee thereof shall have recommended any Company Acquisition Proposal, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached or any of its obligations under officers or directors shall have entered into discussions or negotiations in violation of Section 6.2; , (vi) the board of directors of the Company or any committee thereof shall have resolved to do any of the foregoing or (bvii) there has been a breach any Company Acquisition Proposal is consummated or an agreement with respect to any Company Acquisition Proposal is validly signed on behalf of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have breached or failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but perform in any event within five business days) after receipt material respect any of any written request to do so from Parentthe covenants and agreements set forth in Section 5.04, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within five (5) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Exchange Act, within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, (vi) any of the Controlling Stockholders breaches the Stockholder Voting Agreement by failing to vote to approve the Merger at the Company board of directors fails to recommend against acceptance of such offerStockholders Meeting, or (vvii) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under actions specified in this Section 6.27.03(a); or or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.26.02(a) or Section 6.02(b), or any such representation and warranty shall have become untrue after the date of this Agreementas applicable, such that Section 7.2(a) or 7.2(b) would not be satisfied and and, in either such case, such breach is incapable of being cured by the End Date; provided, that Parent shall have given the Company at least thirty (30) days (or condition is not curable or, if curable, is not cured within 30 such lesser period equal to the number of days after to the End Date) written notice thereof is given prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 7.03(b); provided, further, that the cure period provided by Parent this Section 7.03(b) shall not require the Merger to be consummated later than the CompanyEnd Date.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior before the Offer Acceptance Time by written notice to the Effective Time by action of the board of directors of Parent if Company: (a) if, whether or not permitted to do so, (i) the board of directors of the Company Board shall have made a an Adverse Change Recommendation (provided that, any written notice, including pursuant to Section 1.2, of the Company’s intention to make an Adverse Change Recommendation in advance of making an Adverse Change Recommendation shall not result in Parent having any termination rights pursuant to this Section 8.3(a) unless such written notice constitutes an Adverse Change Recommendation), (ii) the Company shall have failed to take a vote of stockholders on include the Merger prior to Company Board Recommendation in the Termination DateSchedule 14D-9, or (iii) at any time after the end of 10 business Company Board fails to publicly reaffirm the Company Board Recommendation within ten (10) calendar days following receipt of an Acquisition a publicly made Takeover Proposal or otherwise fails to actively oppose such Takeover Proposal; (b) if (i) the Company Board approves, endorses or recommends a Superior Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (ivii) a tender offer or exchange offer by another Person for all outstanding shares of capital stock of the Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) is commenced and the Company board Board recommends in favor of directors recommends that the stockholders of the Company tender their shares in such tender offer or exchange offer orby its shareholders or does not send to its security holders, within 10 business ten (10) calendar days after of such commencement, a statement disclosing that the commencement Company Board recommends the rejection of such tender offer or exchange offer, ; or (c) if the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached breaches any of its obligations under Section 6.2; representations, warranties, covenants or agreements contained in this Agreement, which breach (bi) there would give rise to, if occurring or continuing at the Expiration Time, the failure of the conditions in Annex I and (ii) has not been a breach of any representation, warranty, covenant or agreement made cured by the Company (provided such breach is curable by the Company) within the earlier of the Termination Date and within twenty (20) Business Days after the Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in material breach of their respective representations, warranties, covenants or agreements contained in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if (a) (ia)(i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors of the Company shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable within 48 hours after the later of (but in any event within five A) the fifteenth business days) after day following the receipt of any written an Acquisition Proposal, if the Company has received Parent's request therefor on or prior to do so from such fifteenth business day, or (B) the time when the Company receives Parent's request therefor, if the Company has not received such request on or prior to such fifteenth business day, or (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and (A) the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, or (B) the Company board of directors fails to recommend against acceptance of such offertender offer or exchange offer within 48 hours after the later of (x) the fifteenth business day following such public disclosure, if the Company has received Parent's request therefor on or prior to such fifteenth business day, or (vy) the time when the Company shall have materially breached any of its obligations under Section 6.2receives Parent's request therefor, if the Company has not received such request on or prior to such fifteenth business day; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2)Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time Offer Completion Date by action of the board Board of directors Directors of Parent Parent, if (a) (i) the board of directors representations and warranties of the Company set forth in the Agreement which are not qualified by "materiality" or "Company Material Adverse Effect" shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement not be true and the Merger as promptly as practicable (but correct in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offerall material respects, or (v) the representations and warranties that are qualified by "materiality" or "Company Material Adverse Effect" shall have materially breached any of its obligations under Section 6.2not be true and correct in all respects; or (b) there has been a PROVIDED that such breach of any representation, warranty, covenant representation or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 the earlier of (i) 10 calendar days after written notice thereof of such breach is given by Parent to the Company or (ii) the Expiration Date; or (b) there has been a material breach or failure to perform of any of the covenants set forth in this Agreement on the part of the Company, which breach is not curable or, if curable, is not cured within the earlier of (i) 10 calendar days after written notice of such breach is given by Parent to the Company and (ii) the Expiration Date; or (c) (i) the Board of Directors or any committee thereof of the Company shall have (A) failed to recommend or withdrawn or modified in a manner adverse to Parent or Purchaser its approval or recommendation of this Agreement, the Offer or the Merger or (B) approved or recommended, or proposed publicly to approve or recommend, a Company Takeover Proposal to the Stockholders or shall have resolved to do any of the foregoing, or (ii) the Company shall have entered into a Company Acquisition Agreement or the Company Board shall have authorized the Company to do so; or (d) any person, entity or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired beneficial ownership of more than 20% of any class or series of capital stock of the Company, through the acquisition of stock, the formation of a group or otherwise, or shall have been granted any option, right or warrant, conditional or otherwise, to acquire beneficial ownership of more than 20% of any class or series of capital stock of the Company (other than Holdings and its Affiliates), or Holdings and its Affiliates shall have acquired additional Shares after the date hereof.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to before the Effective Time by action of the board of directors of Parent if Acceptance Time: (a) if the Company Board (or a committee thereof) withdraws, modifies, amends or qualifies the Company Board Recommendation in a manner adverse to Parent or Merger Sub; (b) if (i) the board Company Board (or a committee thereof) approves, adopts, endorses, recommends or otherwise declares advisable the adoption of directors a Takeover Proposal, (ii) a tender offer or exchange offer (other than the Tender Offer) for all outstanding shares of capital stock of the Company shall have made is commenced and the Company Board recommends in favor of such tender offer or exchange offer by its stockholders, (iii) the Company or the Company Board (or any committee thereof) approves or recommends, or enters into or allows the Company or any of its Subsidiaries to enter into, a Change letter of intent, agreement in principle or definitive agreement for a Takeover Proposal, (iv) within three Business Days of a written request by Parent for the Company to reaffirm the Company Board Recommendation following the date any Takeover Proposal or any material modification thereto is first published or sent or given to the stockholders of the Company, the Company fails to issue a press release that reaffirms the Company Board Recommendation, (iiv) the Company shall have failed to take include in the Schedule 14D-9 or the Company Proxy Statement distributed to its stockholders the Company Board Recommendation or (vi) the Company or the Company Board (or any committee thereof) shall authorize or publicly propose any of the foregoing; (c) if the Company breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breaches, individually or in the aggregate, (i) would give rise to, if occurring or continuing at the Expiration Date, the failure of a vote Tender Offer Condition and (ii) have not been cured by the Company within the earlier of stockholders on ten Business Days (or in the Merger prior to case of a breach by the Company of any of its obligations contained in Section 6.14(d) or Section 6.16, twenty Business Days) after the Company’s receipt of written notice of such breach from Parent and the Termination Date, but only so long as neither Parent nor Merger Sub are then in breach of their respective representations, warranties, covenants or agreements contained in this Agreement, which breach by Parent or Merger Sub would make it impossible for Merger Sub to consummate the Tender Offer or the Merger; or (iiid) at any time after the end of 10 business days following receipt of an Acquisition Proposalif, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from ParentExpiration Date (A) Parent has not received the Requisite Notes Consent, (ivB) a tender offer or exchange offer for outstanding shares of Company Common Stock the Forward Purchase Commitment Letter shall have been publicly disclosed (other than by terminated or the Forward Purchasers shall have indicated to Parent in writing their intention not to consummate their obligations thereunder with respect to the Change of Control Offer or Parent or an its Affiliate of Parentshall not be able to obtain the Forward Purchase Commitment promptly following the Acceptance Time and (C) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially Parent has not breached any of its obligations under Section 6.2; representations, warranties, covenants or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company agreements contained in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that which breach would permit the Company to terminate this Agreement pursuant to Section 7.2(a8.4(b) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent (determined without giving effect to the Companynotice and cure provisions contained therein).

Termination by Parent. This Agreement may be terminated and Parent shall have the Merger may be abandoned at any time prior right to the Effective Time by action of the board of directors of Parent if (a) terminate this Agreement: (i) the board of directors of if prior to Company Stockholder Approval and in accordance with Section 5.02, the Company shall have made enters into a Change of Recommendation, Company Acquisition Agreement with respect to a Superior Company Proposal; (ii) if prior to Company Stockholder Approval, (A) the Company shall have failed makes a Company Adverse Recommendation Change or the Company or the Company Board (or any committee thereof) publicly announces its intention to take make a vote of stockholders on the Merger prior to the Termination DateCompany Adverse Recommendation Change, (iiiB) at any time the Company Board fails to reaffirm, within ten (10) Business Days after the end of 10 business days following receipt of an Acquisition Proposalbeing so requested in writing by Parent, the Company’s board of directors Company Board Recommendation after any Company Takeover Proposal (or material modification) is first publicly disclosed by the Company or the Person making such Company Takeover Proposal (provided that the Company Board shall have failed not be required to reaffirm its approval the Company Board Recommendation more than two times) or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (ivC) a tender offer or exchange offer for outstanding shares of relating to the Company Common Stock shall have been publicly disclosed (other than commenced by Parent or an Affiliate of a Person unaffiliated with Parent) , and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of Securities Act, within ten (10) Business Days after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company tender their shares in Board Recommendation and recommending that stockholders reject such tender or exchange offer or(provided that the issuance by the Company of any "stop, within 10 business days look and listen" communication of the type contemplated by Rule 14d-9(f) under the Exchange Act prior to such statement and recommendation shall not give Parent the right to terminate this Agreement); provided, however, that Parent shall not have the right to terminate this Agreement under this Section 8.01(d)(ii) after the commencement of such tender or exchange offer, Company Stockholder Approval is obtained at the Company board of directors Stockholders Meeting; or (iii) if the Company breaches or fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached perform any of its obligations covenants or agreements contained herein, or if any of the representations or warranties of the Company contained herein fails to be true and correct, which breach or failure (1) would give rise to the failure of a condition set forth in Section 7.01, Section 7.03(a) or Section 7.03(b), as applicable, and (2) is not reasonably capable of being cured by the Company by the End Date (as it may be extended pursuant to Section 8.01(b)(i)) or is not cured by the Company within thirty (30) days after receiving written notice from Parent of such breach or failure; provided, however, that Parent shall not have the right to terminate this Agreement under this Section 6.2; or (b8.01(d)(iii) there has been a if Parent is then in breach of any representation, warranty, covenant or agreement made by contained herein or any representation or warranty of Parent contained herein then fails to be true and correct such that the Company conditions set forth in Section 7.02(a) or Section 7.02(b), as applicable, could not then be satisfied. The Party desiring to terminate this Agreement pursuant to this Section 8.01 (other than pursuant to Section 6.28.01(a), or any ) shall give written notice of such representation and warranty shall have become untrue after termination to the date other Party specifying the provision of this Agreement, Agreement pursuant to which such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition termination is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Companybeing effected.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if if: (a) (i) the board of directors of the Company shall have made Board or any committee thereof makes a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for the outstanding shares of Shares is commenced, or a proposal is made to the Company Common Stock shall have been publicly disclosed (other than by Parent or publically announced, that would, in each case, if consummated, constitute an Affiliate of Parent) Acquisition Proposal and the Company board Board or any committee thereof shall have failed to recommend against acceptance of directors such tender offer, exchange offer or proposal to its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer, exchange offer or proposal or making any "stop-look-and-listen" communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act) within ten (10) Business Days after Parent's written request to do so following the commencement of such tender offer or exchange offer or making of such proposal or the Company Board or any committee thereof recommends that the stockholders of the Company tender their shares Shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (viii) the Company or the Company Board or any committee thereof shall have materially breached (x) approved, adopted, recommended, or declared advisable any Acquisition Proposal or (y) approved or recommended, or entered into or allowed the Company or any of its obligations under Section 6.2Subsidiaries to enter into, an Alternative Acquisition Agreement or (iv) the Company Board or any committee thereof formally resolves to take or publicly announces an intention to take any of the foregoing actions; or or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and or warranty shall have become untrue after the date of this Agreement, such that which breach or failure to be true (i) would give rise to the failure of a condition set forth in Section 7.2(a6.2(a) or 7.2(bSection 6.2(b) would and (ii) (x) cannot be satisfied and cured by the Company by the Termination Date or (y) if capable of being cured, shall not have been cured within the earlier of (A) thirty (30) calendar days following receipt of written notice from the Parent of such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent failure and (B) one (1) Business Day prior to the Companyearlier of the Termination Date and the date on which the Agreement may otherwise be terminated by the Company in accordance with Article VII; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.4(b) if it or Merger Sub is then in material breach of any of their representations, warranties, covenants or other agreements hereunder, which breach would give rise to the failure of a condition set forth in Section 6.3(a) or 6.3(b) .

Termination by Parent. This Agreement may be terminated by Parent upon written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval (if necessary) of the issuance of the Parent Shares in connection with the Merger by the stockholders of Parent, by any action of the board Board of directors Directors of Parent if Parent, if: (a) the Company shall have breached or failed to perform any of the covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) the conditions set forth in SECTION 7.3(a) OR (b) would not be satisfied as of the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within twenty (20) business days following receipt by the Company of notice of such failure to comply; or (b) (i) the board of directors of the Company or any committee thereof, shall have made withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendationthe Merger or this Agreement, (ii) the Company shall have failed to take a vote include in the Proxy Statement the recommendation of stockholders on the Merger prior to board of directors of the Termination DateCompany in favor of adoption of this Agreement, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposalin connection with a Rule 14d-9 disclosure, the Company’s board of directors of the Company shall have failed to reaffirm its approval or recommendation taken any action other than a rejection of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parenta Rule 14d-9 proposal, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer orany committee thereof shall have recommended any Company Acquisition Proposal, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached or any of its obligations under Section officers or directors shall have entered into discussions or negotiations in violation of SECTION 6.2; , (vi) the board of directors of the Company or any committee thereof shall have resolved to do any of the foregoing or (bvii) there has been a breach any Company Acquisition Proposal is consummated or an agreement with respect to any Company Acquisition Proposal is validly signed on behalf of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.

Termination by Parent. This Agreement may be terminated and the Offer and Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if if: (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been occurred a breach of or failure to perform any representation, warranty, covenant or agreement made on the part of the Company set forth in this Agreement, which breach or failure to perform (y) if the Offer Termination shall not have occurred, would cause any of the conditions set forth in Annex A to not be satisfied, or, if the Offer Termination shall have occurred, would cause any of the conditions set forth in Section 8.2 to not be satisfied, and (z) if such breach or failure to perform cannot be cured by the Company in this Agreement Company, at least twenty (other than Section 6.2), or any such representation and warranty 20) Business Days shall have become untrue elapsed since the date of delivery of a written notice of such breach or failure to perform to the Company from Parent and such breach or failure to perform shall not have been cured in a manner such that such breach or failure to perform no longer results in the applicable condition set forth in Annex A or Section 8.2 not being satisfied or if such breach or failure to perform is capable of being cured by the Company, the Company does not cure such breach or failure to perform within ten (10) Business Days after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and delivery of a written notice of such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent failure to perform to the Company, provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.3(a) if the Company’s breach or failure to perform any of its representations, warranties, covenants or other agreements contained in this Agreement was primarily due to the failure of Parent or Merger Sub to perform any of their obligations under this Agreement; (b) the Company Board makes a Board Recommendation Change (whether or not in compliance with the terms of this Agreement); (c) the Company shall have breached any of its obligations under Section 7.2 which resulted in an Acquisition Proposal being announced, submitted or made; (d) after a tender offer or exchange offer is commenced that, if successful, would result in any Person or “group” (as defined under Section 13(d) of the Exchange Act) becoming a beneficial owner of 20% or more of the outstanding shares of Common Stock (other than by Parent or Merger Sub), the Company Board shall have failed to recommend that the Company’s stockholders not tender their Shares in such tender or exchange offer within ten (10) Business Days after commencement of such tender offer or exchange offer; or (e) the Company Board shall have failed to reconfirm the Company Board Recommendation promptly, and in any event within five (5) Business Days, following Parent’s reasonable request to do so.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by action of the Board of Directors of Parent, at any time prior to the Effective Time Time, before or after the approval by action the stockholders of the board of directors of Parent if Company, if: (a) (i) the board of directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote comply in any respect (without regard to any materiality qualifications, exceptions or provisos therein) with any of stockholders on the covenants or agreements contained in Articles I and V of this Agreement to be complied with or performed by the Company at or prior to such date of termination except for those failures to so perform or comply that, individually or in the aggregate would not either impair the Company's ability to consummate the Merger and the other transactions contemplated hereby or have a Material Adverse Effect; (b) there exists a breach or breaches of any representation or warranty of the Company contained in this Agreement such that the Closing condition set forth in Section 7.01 would not be satisfied; provided, however, that if such breach or breaches are capable of being cured prior to the Termination DateEffective Time, such breaches shall not have been cured within 30 days of delivery to the Company of written notice of such breach or breaches; (iiic) at any time after the end Board of 10 business days following receipt Directors of an Acquisition Proposal, the Company’s board of directors shall have failed Company (i) fails to reaffirm its recommend the approval or recommendation of this Agreement and the Merger as promptly as practicable to the Company's stockholders,(ii) withdraws or amends or modifies in a manner adverse to Parent its recommendation or approval in respect of this Agreement or the Merger or (but iii) makes any recommendation with respect to an Acquisition Transaction (including making no recommendation or stating an inability to make a recommendation), other than a recommendation to reject such Acquisition Transaction, or the Board of Directors of the Company shall have resolved to take any of the foregoing actions referred to in this clause and publicly discloses such resolution; (d) the Company or its representatives shall furnish or disclose non-public information or negotiate, discuss, explore or otherwise communicate in any event within five business daysway with a third party with respect to an Acquisition Transaction, or the Board of Directors of the Company shall have resolved to take any of the foregoing actions referred to in this clause and publicly discloses such resolution; or (e) after receipt the number of any written request to do so from Parent, Dissenting Shares exceeds the lesser of (ivp) a tender offer or exchange offer for outstanding 10% of the total number of shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent outstanding immediately prior to the CompanyEffective Time and (q) such number of Dissenting Shares as Parent shall be advised by its independent certified public accountants will render them unable to deliver the letter referred to in Section 6.06 given the totality of other circumstances in existence at the Effective Time.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned by Parent at any time prior to the Effective Time (notwithstanding any approval of this Agreement by action the stockholders of the board of directors of Parent if Company): (a) if (i) the board of directors of the a Company Adverse Recommendation Change shall have made a Change of Recommendationoccurred, (ii) the Company shall have failed entered into, or publicly announced its intention to take enter into, a vote of stockholders on the Merger prior to the Termination DateCompany Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors Company shall have willfully and intentionally breached or failed to reaffirm its approval or recommendation of this Agreement perform the covenants and the Merger as promptly as practicable (but agreements set forth in any event within five business days) after receipt of any written request to do so from ParentSection 5.04, (iv) the Company Board fails to reaffirm (publicly, if so requested by Parent) the Company Board Recommendation within ten (10) Business Days after the date any Takeover Proposal (or material modification thereto) is first publicly disclosed by the Company or the Person making such Takeover Proposal, (v) a tender offer or exchange offer for outstanding shares of relating to Company Common Stock shall have been publicly disclosed (other than commenced by a Person unaffiliated with Parent or an Affiliate of Parent) and the Company board of directors recommends that shall not have sent to its stockholders pursuant to Rule 14e-2 under the stockholders of the Company tender their shares in Securities Act, within ten (10) Business Days after such tender offer or exchange offer oris first published, within 10 business days after sent or given, a statement reaffirming the commencement of Company Board Recommendation and recommending that stockholders reject such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (vvi) the Company or the Company Board (or any committee thereof) shall have materially breached publicly announce its intentions to do any of its obligations under the actions specified in this Section 6.27.03(a); or or (b) if there has shall have been a breach of any representation, warranty, covenant or agreement made by on the part of the Company set forth in this Agreement (other than such that the conditions to the Closing of the Merger set forth in Section 6.26.02(a) or Section 6.02(b), or any as applicable, would not be satisfied and, in either such representation and warranty case, such breach is incapable of being cured by the End Date; provided, that Parent shall have become untrue after given the date Company at least 30 days written notice prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 7.03(b) and the basis for such termination; provided further, that Parent or Merger Sub is not then in material breach of any representation, warranty, agreement or covenant contained in this Agreement; or (c) if, within 24 hours of the execution of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable orthe Stockholder Consent evidencing the Requisite Company Vote, if curable, is not cured within 30 days after written notice thereof is given duly executed by Parent each stockholder of the Company party to the Voting Agreement, shall not have been delivered to Parent and the Company; provided, that this provision shall cease to have any force and effect upon receipt of the Stockholder Consent by Parent; and provided further, that Parent shall only be permitted to exercise the right to terminate this Agreement pursuant to this Section 7.03(c) for two (2) days following the expiration of the Stockholder Consent Delivery Period.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board Board of directors Directors of Parent if (a) there has been a material breach by the Company of any material covenant or agreement contained in this Agreement that is not curable or, if curable, is not cured within thirty (i30) days after written notice of such breach is given by Parent to the party committing such breach; (b) the board Board of directors Directors of the Company shall have made a Change of Recommendation, (ii) the Company shall have failed to take a vote recommend approval of stockholders on the Merger prior in the Proxy Statement or shall have withdrawn or modified its recommendation of the Merger; (c) the Board of Directors of the Company shall have approved or recommended to the Termination Date, stockholders of the Company an Alternative Transaction (iiias defined in Section 9.6(d) at any time after the end of 10 business days following receipt of below); (d) an Acquisition Proposal, the Company’s board of directors Alternative Transaction shall have been announced or otherwise publicly known and the Board of Directors of the Company shall have (A) failed to reaffirm recommend against acceptance of such Alternative Transaction by its shareholders within ten (10) days of delivery of a written request from the Parent for such action or (B) failed to reconfirm its approval or and recommendation of this Agreement and the Merger as promptly as practicable transactions contemplated hereby within ten (but in any event within five business days10) after receipt days of any delivery of a written request to do so from Parent, the Parent for such action or (ive) a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock shall have been publicly disclosed Shares is commenced (other than by the Parent or an Affiliate of the Parent) and the Board of Directors of the Company board of directors recommends that the stockholders shareholders of the Company tender their shares in such tender or exchange offer or, within 10 business ten (10) days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, offer or (v) the Company shall have materially breached any of its obligations under Section 6.2; or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent takes no position with respect to the Companyacceptance thereof.

Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the board of directors of Parent if if: (a) (i) the board of directors of the Company shall have made Board or any committee thereof makes a Change of Recommendation, (ii) the Company shall have failed to take a vote of stockholders on the Merger prior to the Termination Date, (iii) at any time after the end of 10 business days following receipt of an Acquisition Proposal, the Company’s board of directors shall have failed to reaffirm its approval or recommendation of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parent, (iv) a tender offer or exchange offer for the outstanding shares of Shares is commenced, or a proposal is made to the Company Common Stock shall have been publicly disclosed (other than by Parent or publically announced, that would, in each case, if consummated, constitute an Affiliate of Parent) Acquisition Proposal and the Company board Board or any committee thereof shall have failed to recommend against acceptance of directors such tender offer, exchange offer or proposal to its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer, exchange offer or proposal or making any “stop look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act) within ten (10) Business Days after Parent’s written request to do so following the commencement of such tender offer or exchange offer or making of such proposal or the Company Board or any committee thereof recommends that the stockholders of the Company tender their shares Shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (viii) the Company or the Company Board or any committee thereof shall have materially breached (x) approved, adopted, recommended, or declared advisable any Acquisition Proposal or (y) approved or recommended, or entered into or allowed the Company or any of its obligations under Section 6.2Subsidiaries to enter into, an Alternative Acquisition Agreement or (iv) the Company Board or any committee thereof formally resolves to take, or publicly announces an intention to take, any of the foregoing actions; or or (b) there has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and or warranty shall have become untrue after the date of this Agreement, such that which breach or failure to be true (i) would give rise to the failure of a condition set forth in Section 7.2(a6.2(a) or 7.2(bSection 6.2(b) would and (ii) (x) cannot be satisfied and cured by the Company by the Termination Date or (y) if capable of being cured, shall not have been cured within the earlier of (A) thirty (30) calendar days following receipt of written notice from the Parent of such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent failure and (B) one (1) Business Day prior to the Companyearlier of the Termination Date and the date on which the Agreement may otherwise be terminated by the Company in accordance with Article VII; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.4(b) if it or Merger Sub is then in material breach of any of their representations, warranties, covenants or other agreements hereunder, which breach would give rise to the failure of a condition set forth in Section 6.3(a) or 6.3(b).

Termination by Parent. This Agreement may be terminated by Parent upon written notice to the Company and the Merger may be abandoned at any time prior to the Effective Time Time, before or after the approval (if necessary) of the issuance of the Parent Shares in connection with the Merger by the stockholders of Parent, by action of the board of directors of Parent if Parent, if: (a) the Company shall have breached or failed to perform any of the covenants or other agreements contained in this Agreement, or if any representation or warranty shall have become untrue, in either case such that (i) the conditions set forth in SECTION 7.3(a) OR (b) would not be satisfied as of the time of such breach or as of such time as such representation or warranty shall have become untrue and (ii) such breach or failure to be true has not been or is incapable of being cured within twenty (20) business days following receipt by the Company of notice of such breach or failure to be true; or (b) (i) the board of directors of the Company or any committee thereof, shall have made withdrawn or modified in a Change manner adverse to Parent its approval or recommendation of Recommendationthe Merger or this Agreement, (ii) the Company shall have failed to take a vote include in the Proxy Statement the recommendation of stockholders on the Merger prior to board of directors of the Termination DateCompany in favor of adoption of this Agreement, (iii) at any time after the end of 10 business days following receipt of in connection with a Rule 14d-9 disclosure concerning an unsolicited Company Acquisition Proposal, the Company’s board of directors of the Company shall have failed to reaffirm its approval or recommendation taken any action other than a rejection of this Agreement and the Merger as promptly as practicable (but in any event within five business days) after receipt of any written request to do so from Parentsuch proposal, (iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been publicly disclosed (other than by Parent or an Affiliate of Parent) and the Company board of directors recommends that the stockholders of the Company tender their shares in such tender or exchange offer orany committee thereof shall have recommended to the Company's shareholders any Company Acquisition Proposal, within 10 business days after the commencement of such tender or exchange offer, the Company board of directors fails to recommend against acceptance of such offer, or (v) the board of directors of the Company or any committee thereof shall have materially breached resolved to do any of its obligations under Section 6.2; the foregoing, or (bvi) there has been a breach any Company Acquisition Proposal is consummated or an agreement with respect to any Company Acquisition Proposal is validly signed on behalf of any representation, warranty, covenant or agreement made by the Company in this Agreement (other than Section 6.2), or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.2(a) or 7.2(b) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 30 days after written notice thereof is given by Parent to the Company.