Common use of Termination Fee Clause in Contracts

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in If this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated shall be terminated: (i) by PJC FSIC pursuant to Section 10.1(d9.1(d)(ii) or Section 10.2(f9.1(d)(iii), ; (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes CCT pursuant to Section 10.1(c9.1(c)(iv); or (iii) (A) by (x) FSIC or CCT pursuant to Section 10.1(e9.1(b)(ii) or Section 9.1(b)(iii) or (y) FSIC pursuant to Section 9.1(d)(i) (unless solely to the extent that CCT has committed a willful or intentional breach), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Section 9.1(b)(ii) or Section 9.1(d)(i), prior to the date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iii), prior to the time of the duly held CCT Stockholders Meeting, and (C) CCT enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period); provided, that for purposes of this Section 9.2(a)(iii), the term “Takeover Proposal” will have the meaning assigned to such term in Article X, except that references to “25%” will be deemed to be references to “50%”, then CCT shall (A) in the case of Section 10.1(e9.2(a)(i), PJC’s material breach was no later than two (2) Business Days after the basis for date of such termination, (B) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iiiSection 9.2(a)(ii), within sixty prior to, and as a condition to such termination, and (60C) days in the case of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s AffiliatesSection 9.2(a)(iii), then within two (2) Business Days following after the date that such termination Takeover Proposal is consummated, in each case pay FSIC, subject to applicable Law, a non-refundable fee in an amount equal to $75,177,120 (the “CCT Termination Fee”) as liquidated damages and full compensation hereunder, by wire transfer of immediately available funds to an account designated in writing to CCT by FSIC if FSIC shall have furnished to CCT wire payment instructions prior to the case date of clause payment or, otherwise, by certified or official bank check. In the event that the CCT Termination Fee becomes payable and is paid by CCT pursuant to this Section 9.2(a), the CCT Termination Fee shall be FSIC’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement. (b) If this Agreement shall be terminated: (i) by CCT pursuant to Section 9.1(c)(ii) or clause Section 9.1(c)(iii); (ii) by FSIC pursuant to Section 9.1(d)(iv); or (iii) (A) by (x) FSIC or CCT pursuant to Section 9.1(b)(ii) or entry into such an agreement Section 9.1(b)(iv) or consummation of such Alternative Proposal (in the case of clause y) CCT pursuant to Section 9.1(c)(i) (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition solely to the foregoingextent that FSIC has committed a willful or intentional breach), and notwithstanding anything in this Agreement to (B) a Takeover Proposal has been publicly disclosed after the contrary, and without limiting any other provision date of this Agreement or any other Transaction Documentand, in the event that (x) this Agreement has been validly terminated by Emergent pursuant prior to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Section 9.1(b)(ii) and Section 9.1(c)(i), prior to the date of such termination and (2) with respect to any termination pursuant to Section 9.1(b)(iv), prior to the time of the duly held FSIC Stockholders Meeting, and (C) FSIC enters into a definitive Contract with respect to such Takeover Proposal within twelve (12) months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or following such twelve (12)-month period); provided, that for purposes of this Section 9.2(b)(iii), the term “Takeover Proposal” will have the meaning assigned to such term in Article X, except that references to “25%” will be deemed to be references to “50%”, then FSIC shall (A) in the case of Section 9.2(b)(i), no later than two (2) Business Days after the date of such termination, (B) in the case of Section 9.2(b)(ii), prior to, and as a condition to such termination, and (C) in the case of Section 9.2(b)(iii), within two (2) Business Days following after the expiration date that such Takeover Proposal is consummated, in each case, pay CCT, subject to applicable Law, a non-refundable fee in an amount equal to $75,177,120 (the “FSIC Termination Fee”) as liquidated damages and full compensation hereunder, by wire transfer of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed funds to an account designated in writing to FSIC by Emergent. (b) Notwithstanding anything in this Agreement CCT if CCT shall have furnished to FSIC wire payment instructions prior to the contrarydate of payment or, if PJCotherwise, Triax by certified or Emergent receives a payment under official bank check. In the event that the FSIC Termination Fee becomes payable and is paid by FSIC pursuant to this Section 10.3(a9.2(b), such payment the FSIC Termination Fee shall be deemed to be liquidated damages, and shall be its CCT’s sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of remedy for monetary damages under this Agreement that resulted in the making of such paymentAgreement. (c) Emergent and each Consenting Convertible Note Holder acknowledges The parties acknowledge that the agreements contained in this Section 10.3 9.2 are an integral part of the transactions contemplated by this Agreement and thatTransactions, that without these agreements, PJC agreements each party would not enter have entered into this Agreement, and that any amounts payable pursuant to this Section 9.2 do not constitute a penalty. Accordingly, if Emergent If FSIC fails to pay any amounts due to CCT pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for 9.2 within the amounts set forth time periods specified in this Section 10.39.2 or CCT fails to pay FSIC any amounts due to FSIC pursuant to this Section 9.2 within the time periods specified in this Section 9.2, Emergent FSIC or CCT, as applicable, shall pay to PJC reasonable and Triax their documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred by CCT or FSIC, as applicable, in connection with any action, including the filing of any lawsuit, taken to collect payment of such Legal Proceedingamounts, together with interest on such unpaid amounts from the date payment of such amounts was due pursuant to this Section 10.3 at the prime lending rate in effect on the date payment was due as published in The Wall Street Journal (or any successor publication thereto), calculated on a daily basis from the date such payment was amounts were required to be made paid until the date of payment at the rate of ten percent (10%) per annumactual payment. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (ai) Notwithstanding anything in In the event that: (A) this Agreement is terminated by CPT pursuant to Section 8.1(e); or (B) this Agreement is terminated by Inuvo pursuant to Section 8.1(f), then in the contrarycase of (A) or (B) above, Inuvo shall promptly, but in no event later than the date of the earliest such event, pay to CPT a fee equal to Two Million Eight Hundred Thousand Dollars ($2,800,000) (the “Inuvo Termination Fee”), payable by wire transfer of same day funds; provided, however, that, in the case of any termination pursuant to Section 8.1(f), the CPT Termination Fee shall be payable prior to, and without limiting any other provision of this Agreement or any other Transaction Documentas a condition to, in such termination. (ii) In the event that this Agreement has been validly is terminated (i) by PJC Inuvo pursuant to Section 10.1(d8.1(g) or Section 10.2(f8.1(h), CPT shall, or shall cause Parent to, promptly, but in no event later than the date of the earliest such event, pay to Inuvo a fee equal to Two Million Eight Hundred Thousand Dollars (ii$2,800,000) (the “CPT Termination Fee”), payable by Convertible Note Holderswire transfer of same day funds; provided, including the Consenting Convertible Note Holdershowever, that, in the aggregate, hold a majority case of the aggregate principal amount of the outstanding Convertible Notes any termination pursuant to Section 10.1(c8.1(g) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e8.1(h), PJC’s material breach was the basis for CPT Termination Fee shall be payable prior to, and as a condition to, such termination) or . (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case Each of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC CPT and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder Inuvo acknowledges that the agreements contained in this Section 10.3 8.3(b) are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC each Party would not enter into this Agreement. It is agreed that each of the CPT Termination Fee and the Inuvo Termination Fee constitutes liquidated damages and is not a penalty, and the payment of the CPT Termination Fee or the Inuvo Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. Accordingly, if Emergent CPT or Inuvo fails promptly to pay any amounts make a payment due pursuant to this Section 10.38.3(b), and, in order to obtain such payment, PJC and/or Triax CPT on the one hand, or Inuvo on the other hand, commences a Legal Proceeding suit that results in a judgment against Emergent for the amounts set forth in this Section 10.3other Party, Emergent such other Party shall pay to PJC and Triax CPT or Inuvo, as applicable, their reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to amount set forth in this Section 10.3 8.3(b) at the publicly announced prime rate of Bank of America, N.A. plus two percent (2.0%) per annum, compounded quarterly, from the date such payment was required to be made until paid. Payment of the date fees described in this Section 8.3(b) shall not be in lieu of payment at damages incurred in the rate event of ten percent (10%) per annuma breach of this Agreement described in Section 8.2. (div) Simultaneously with the execution and delivery of this Agreement, Emergent In no event shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall more than one CPT Termination Fee or one Inuvo Termination Fee be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3payable hereunder.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that If (x) this Agreement has been validly is terminated by Emergent pursuant to (i) Section 10.1(b7.1(b)(i) (Termination Date) and the Minimum Tender Condition has not been satisfied at the time of such termination and prior to such termination any Person (other than BGCP and Purchaser) shall have made a Takeover Proposal, which shall have been publicly announced or disclosed or disclosed to the GFI Board or any committee thereof, (ii) Section 7.1(c)(i) (Breach by GFI), (iii) Section 7.1(c)(ii) (Violation of Alternative Proposals) or (iv) Section 7.1(c)(iii) (Failure to Recommend or Change in Recommendation) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date twelve months of such termination, then within two (1) GFI enters into a definitive agreement to consummate a transaction contemplated by any Takeover Proposal (regardless of when made and such transaction is thereafter consummated (regardless of when consummated)) or (2) Business Days following the expiration GFI consummates a transaction contemplated by any Takeover Proposal (regardless of such sixty (60) day periodwhen made), PJC then GFI shall pay pay, or cause to be paid paid, to Emergent the amount BGCP, by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergentan amount equal to $27,005,057 (the “Termination Fee”), concurrently with the consummation of such transaction; provided that, solely for purposes of this Section 7.3(a), the term “Takeover Proposal” shall have the meaning ascribed thereto in Section 5.4(f) (Alternative Proposals), except that all references to 20% shall be changed to 50%. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges GFI agrees that the agreements contained in this Section 10.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC BGCP would not enter into this Agreement. Accordingly, if Emergent GFI fails promptly to pay any amounts due pursuant to under this Section 10.3, 7.3 and, in order to obtain such payment, PJC and/or Triax BGCP commences a Legal Proceeding suit that results in a judgment against Emergent GFI for the amounts set forth in this Section 10.3such amounts, Emergent GFI shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on such amounts from the date the payment of such amounts was due pursuant to this Section 10.3 from the date of actual payment at the prime rate of the Bank of New York in effect on the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously due, together with the execution and delivery reasonable Expenses of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking BGCP in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance connection with this Section 10.3such suit.

Termination Fee. (a) Notwithstanding anything Any provision in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in contrary notwithstanding, (a) In the event that this Agreement has been validly terminated that: (i) after the date of this Agreement, (A) any Alternative Proposal (substituting fifty percent (50%) for the fifteen percent (15%) threshold set forth in the definition of “Alternative Proposal”) (a “Qualifying Transaction”) is publicly proposed or publicly disclosed prior to, and not withdrawn prior to the time of, the Company Meeting, (B) this Agreement is validly terminated by PJC Parent or the Company pursuant to (1) Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination7.1(d) or (iii2) by PJC or Emergent pursuant to Section 10.1(b7.1(b) or Section 10.1(g) (and, in the case of this clause (iiiB)(2), within sixty so long as (60x) days prior to the time such Alternative Proposal was first publicly proposed or publicly disclosed Parent shall not have delivered a notice to the Company in accordance with Section 7.1(f) or Section 5.11 citing a failure of a condition to the obligation of Parent and Merger Subsidiary to consummate the Merger set forth in Section 6.3(a)(i) and (y) at the time of such termination Emergent enters termination, the condition set forth in Section 6.1(a) shall not have been satisfied but all other conditions to the obligations of the parties to consummate the Merger set forth in Sections 6.1, 6.2(a) and 6.2(b) have been satisfied) and (C) concurrently with or within twelve (12) months after such termination, the Company shall have entered into any a definitive agreement with respect to a Qualifying Transaction or consummates consummated the transactions contemplated by a Qualifying Transaction; (ii) Parent shall have validly terminated this Agreement pursuant to Section 7.1(g) or 7.1(h); or (iii) the Company shall have validly terminated this Agreement pursuant to Section 7.1(i), then, in any such event, the Company shall pay to Parent (or, at Parent’s direction, an Alternative Proposal with Affiliate of Parent) a third party other than PJC fee of twenty-three million eight hundred thousand dollars ($23,800,000) in cash (the “Termination Fee”), by wire transfer of same day funds to one or one more accounts designated by Parent, such payment to be made, in the case of PJC’s Affiliatesa termination referenced in clause (i) above, then within two (2) Business Days following such termination (upon consummation of the Qualifying Transaction, in the case of clause (iii) or clause above, within three (ii)3) or entry into such an agreement or consummation Business Days of such Alternative Proposal (termination or, in the case of clause (iii) above, in advance of or substantially concurrently with the termination by the Company pursuant to Section 7.1(i)) Emergent ; it being understood that in no event shall the Company be required to pay or cause to the Termination Fee on more than one occasion. The foregoing notwithstanding, the “Termination Fee” shall be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars eleven million nine hundred thousand dollars ($1,500,000.0011,900,000) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, cash solely in the event that (x) this Agreement has been validly is terminated by Emergent the Company prior to the thirtieth (30th) day after the Solicitation Period End-Date pursuant to Section 10.1(b7.1(i) and (y) Emergent has not entered to enter into a Qualifying Transaction with an Alternative Proposal within sixty (60) days Excluded Party. Following receipt by Parent of the date of such terminationTermination Fee in accordance with this Section 7.3, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC Company shall pay have no further liability with respect to this Agreement or cause the transactions contemplated hereby to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by EmergentParent or Merger Sub. (b) Notwithstanding anything The parties agree and understand that (i) in no event shall the Company be required to pay the Termination Fee on more than one occasion and (ii) in no event shall Parent be entitled, pursuant to this Section 7.3, to receive an amount greater than the Termination Fee. Anything to the contrary in this Agreement notwithstanding, except in the case of fraud, (A) if Parent receives the Termination Fee from the Company pursuant to the contrary, if PJC, Triax or Emergent receives a payment under this Section 10.3(a)7.3, such payment shall be deemed to be liquidated damages, and shall be its the sole and exclusive remedyremedy of the receiving party against the paying party and its Subsidiaries and their respective former, with current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives and none of the paying party, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby and (B) if Parent or Merger Sub receives any payments from the Company in respect to of any breach of this Agreement and thereafter Parent receives the representationTermination Fee pursuant to this Section 7.3, warranty, covenant, obligation or agreement hereunder the amount of such Termination Fee shall be reduced by the aggregate amount of such payments made by the party paying the Termination Fee in respect of any such breaches. The parties acknowledge that was the basis agreements contained in this Section 7.3 are an integral part of the termination of transactions contemplated hereby, that, without these agreements, the parties would not enter into this Agreement and that any amounts payable pursuant to this Section 7.3 do not constitute a penalty. Accordingly, if any party fails to promptly pay any amount due pursuant to this Section 7.3, such party shall also pay any costs and expenses (including reasonable legal fees and expenses) incurred by the party entitled to such payment in connection with a legal action to enforce this Agreement that resulted results in a judgment for such amount against the making party failing to promptly pay such amount. Any amount not paid when due pursuant to this Section 7.3 shall bear interest from the date such amount is due until the date paid at a rate equal to the prime rate as published in The Wall Street Journal, Eastern Edition in effect on the date of such payment. (c) Emergent If the circumstances described in both Section 7.3(a)(i)(A) and each Consenting Convertible Note Holder acknowledges that Section 7.3(a)(i)(B) shall have occurred, but the agreements contained in this Section 10.3 are an integral part Termination Fee, as of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due time Parent requests reimbursement pursuant to this Section 10.37.3(c), andshall not have become payable (as a result of the non-occurrence of events described in 7.3(a)(i)(C)), in order to obtain such paymentthe Company shall reimburse Parent and its Affiliates (by wire transfer of immediately available funds), PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent no later than two (2) Business Days after submission of reasonable documentation thereof, for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax 100% of their costs reasonable out-of-pocket fees and expenses (including reasonable attorneys’ fees and expensesexpenses of their counsel) up to $5,000,000 actually incurred by any of them in connection with this Agreement and the transactions contemplated hereby including the arrangement of, obtaining the commitment to provide or obtaining any financing for such Legal Proceedingtransactions; provided that, together with interest on to the amounts due extent that the Termination Fee becomes payable to Parent pursuant to Section 7.3(a)(i), the amount of such Termination Fee shall be reduced by the aggregate amount of any fees and expenses actually paid to Parent and its Affiliates by the Company pursuant to this Section 10.3 from 7.3(c), and following the date such payment was required of the Termination Fee, as so reduced, if applicable, to be made until Parent, the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent Company shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with have no further obligation under this Section 10.37.3(c).

Termination Fee. (a) Notwithstanding anything in If Parent or the Company terminates this Agreement pursuant to Section 8.1(c)(ii) or Section 8.1(d)(ii), the contraryCompany shall pay to Parent a termination fee of $6,740,000; provided, and without limiting any other provision of this Agreement or any other Transaction Documenthowever, that in the event that this Agreement has been validly is terminated pursuant to Section 8.1(c)(ii)(B) or Section 8.1(d)(ii) and either (x) such termination occurs on or before the No-Shop Period Start Date, or (y) the Company enters into a definitive agreement with an Excluded Party with respect to a Superior Proposal in accordance with Section 6.2 on or before the Acceptance Time, then the Company shall pay, or cause to be paid, to Parent an amount equal to $3,370,000 instead of $6,740,000. (b) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iii), Section 8.1(c)(i) or Section 8.1(b)(i), and (i) by PJC pursuant if prior to Section 10.1(dthe date of such termination (but after the date hereof) an Acquisition Proposal is publicly announced or Section 10.2(f)is otherwise communicated to the Board of Directors of the Company, and (ii) by Convertible Note Holders, including within twelve (12) months after the Consenting Convertible Note Holders, that, in the aggregate, hold a majority date of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent Company enters into any a definitive agreement with respect to or otherwise consummates an Alternative Proposal with any Acquisition Proposal, the Company shall pay to Parent a third party other termination fee of $6,740,000 no later than PJC or one of PJC’s Affiliates, then within two (2) Business Days following after the execution of such termination (in the case of clause (i) or clause (ii)) or entry into such an definitive agreement or consummation of such Alternative Proposal (in Acquisition Proposal, as the case may be; provided, that solely for purposes of clause this Section 8.3(b), the term Acquisition Proposal shall have the meaning ascribed thereto in Section 6.2(d), except that all references to twenty percent (iii20%) shall be changed to fifty percent (50%). (c) Emergent shall pay If Parent or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in Company terminates this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination8.1(c)(i), then within the Company shall reimburse Parent for any Expenses incurred by it, Merger Sub or any of their Affiliates or permitted assignees, in an aggregate amount not to exceed $2,000,000 (“Expense Reimbursement”), no later than two (2) Business Days following after the expiration date of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergenttermination. (bd) The parties agree and understand that in no event shall the Company be required to pay any termination fee pursuant to this Section 8.3 (any such amount, the “Termination Fee”) on more than one occasion. Notwithstanding anything to the contrary in this Agreement Agreement, (i) if Parent receives the Termination Fee and/or Expense Reimbursement from the Company pursuant to the contrary, if PJC, Triax or Emergent receives a payment under this Section 10.3(a)8.3, such payment shall be deemed to be liquidated damages, and shall be its the sole and exclusive remedyremedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, with respect to any breach current or future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives and none of the representationCompany, warrantyany of its Subsidiaries or any of their respective former, covenantcurrent or future officers, directors, partners, shareholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to or agreement hereunder that was the basis of the termination arising out of this Agreement that resulted in or the making Transactions and (ii) if Parent or Merger Sub receives any Expense Reimbursement, and thereafter Parent is entitled to receive the Termination Fee under this Section 8.3, the amount of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges Termination Fee shall be reduced by the aggregate amount of such Expense Reimbursement. The parties acknowledge that the agreements contained in this Section 10.3 8.3 are an integral part of the transactions contemplated by this Agreement Transactions, and that, without these agreements, PJC the parties would not enter into this Agreement. Accordingly, if Emergent fails to pay and that any amounts due payable pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences 8.3 do not constitute a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumpenalty. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in In the event that Enova terminates this Agreement pursuant to Sections ‎9.1(b)(i), ‎9.1(b)(iii) or ‎9.1(e) prior to the contrary12-month anniversary of the date hereof, then Enova shall pay to Grasshopper an amount equal to $5,000,000 (the “Reverse Termination Fee XE "Reverse Termination Fee" ”) in same-day funds to the account specified by Grasshopper within two Business Days from the date of termination of this Agreement for that purpose. The payment of the Reverse Termination Fee by ▇▇▇▇▇ pursuant to this Section ‎9.2(b) shall constitute liquidated damages and not a penalty, and, except in the case of actual and intentional fraud, the receipt of such fee by Grasshopper shall be the sole and exclusive remedy for damages against Enova for any loss suffered by Grasshopper as a result of any breach of any representation, warranty, covenant or agreement set forth herein, the failure of the transactions contemplated hereby to be consummated or any other theory of liability related to any of the foregoing or otherwise, whether at law or in equity, in contract, in tort or otherwise, and without limiting upon receipt by the Grasshopper of the Reverse Termination Fee, none of Enova or its Affiliates and representatives shall have any other provision further liability or obligation relating to or arising out of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triaxtransactions contemplated hereby. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges The Parties acknowledge that the agreements contained in this Section 10.3 ‎9.2(b) are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, PJC they would not enter into this Agreement. Accordingly, if Emergent If ▇▇▇▇▇ fails promptly to pay any amounts the amount due pursuant to this Section 10.3‎9.2(b), and, in order to obtain such payment, PJC and/or Triax Grasshopper commences a Legal Proceeding that suit which results in a final and non-appealable judgment against Emergent ▇▇▇▇▇ for the amounts set forth in this Section 10.3Reverse Termination Fee or any portion thereof, Emergent Enova shall pay to PJC and Triax their the costs and expenses of Grasshopper (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit. In addition, together with interest on if Enova fails to pay the amounts due payable pursuant to this Section 10.3 from ‎9.2(b), then Enova shall pay interest on such overdue amounts (for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to the “prime rate” as published in The Wall Street Journal on the date on which such payment was required to be made until for the period commencing as of the date of payment at the rate of ten percent (10%) per annumthat such overdue amount was originally required to be paid. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly is terminated (i) by PJC pursuant to Section 10.1(d9.1(f) or Section 10.2(f)9.1(g) then, (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, provided that SIC was not in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was of its representations, warranties, covenants or agreements hereunder at the basis for such time of termination) or (iii) by PJC or Emergent pursuant , MCC will pay to SIC, as its sole recourse in connection with termination of this Agreement in accordance with Section 10.1(b9.1(f) or Section 10.1(g) and, in the case of this clause (iii9.1(g), within sixty as applicable, a fee in an amount equal to $6,000,000 (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii“Termination Fee”)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in In the event that this Agreement is terminated pursuant to Section 9.1(h) or Section 9.1(i) then, provided that MCC was not in material breach of its representations, warranties, covenants or agreements hereunder at the contrarytime of termination, if PJCSIC will pay to MCC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be as its sole and exclusive remedy, recourse in connection with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in accordance with Section 9.1(h) or Section 9.1(i), as applicable, the making of such paymentTermination Fee. (c) Emergent The Termination Fee, if applicable, shall be payable (i) no later than two Business Days after the date on which this Agreement is terminated by SIC pursuant to Section 9.1(f) or by MCC pursuant to Section 9.1(h), and each Consenting Convertible Note Holder (ii) immediately prior to the time of termination by MCC pursuant to Section 9.1(g) or by SIC pursuant to Section 9.1(i). The parties hereto acknowledge and hereby agree that in no event shall any party be required to pay a Termination Fee on more than one occasion. (d) Each of the parties hereto acknowledges that (i) the agreements contained in this Section 10.3 9.4 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the other party, in the circumstances in which the Termination Fee is payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and thatin reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, PJC the parties would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in this Agreement to Parent shall pay the contrary, and without limiting any other provision Company within two (2) business days after the date of the termination of this Agreement or any other Transaction DocumentAgreement, by wire transfer of immediately available funds to an account designated by the Company in writing, an amount equal to: (i) $7,000,000, in the event that this Agreement has been validly is terminated (i) by PJC either Parent or the Company pursuant to Section 10.1(d9.01(b)(i), Section 9.01(b)(ii) or Section 10.2(f9.01(b)(iv), or (ii) by Convertible Note Holdersthe Company pursuant to Section 9.01(d)(i) (the “Termination Fee”); provided that the principal cause of such termination is not a Willful Breach of this Agreement by the Company or Kestrel Intermediate Ledbetter Holdings LLC; provided, including the Consenting Convertible Note Holdersfurther, that, in at the aggregatetime of any such termination, hold a majority all of the aggregate principal amount other conditions set forth in Section 8.02 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but only if such conditions were capable of being satisfied if the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in Closing occurred at the case of Section 10.1(e), PJC’s material breach was same time as the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case termination of this clause (iiiAgreement), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause ; (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document6,500,000, in the event that (x) this Agreement has been validly is terminated by Emergent the Company pursuant to Section 10.1(b9.01(d)(ii) and (ythe “Adverse Recommendation Change Termination Fee”); or (iii) Emergent has not entered into an Alternative Proposal within sixty $2,000,000, in the event that this Agreement is terminated by either Parent or the Company pursuant to Section 9.01(b)(iii) (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent“No Vote Termination Fee”). (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach Each of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder parties acknowledges that the agreements contained in this Section 10.3 9.03 are an integral part of the transactions contemplated by this Agreement Transactions, and that, that without these agreements, PJC the other parties would not enter into this Agreement. Accordingly; accordingly, if Emergent Parent fails to timely pay any amounts amount due pursuant to this Section 10.39.03, and, in order to obtain such the payment, PJC and/or Triax the Company commences a Legal Proceeding that an Action which results in a judgment against Emergent Parent for the amounts payment set forth in this Section 10.39.03, Emergent Parent shall pay to PJC the Company for its reasonable and Triax their documented costs and expenses (including reasonable and documented attorneys’ fees and expensesfees) in connection with such Legal ProceedingAction, together with interest on such amount at the amounts due pursuant to this Section 10.3 from prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made until through the date of such payment at the rate of ten percent (10%) per annumwas actually received. (dc) Simultaneously with Notwithstanding anything to the execution and delivery of contrary set forth in this Agreement, Emergent shall cause Lamington Road but subject to execute and deliver Section 10.08, except in the case of Fraud, the Company’s right to PJC a written undertaking in form and substance satisfactory to PJC receive payment from Parent of the Termination Fee pursuant to which Lamington Road shall be legally obligated Section 9.03(a)(i), the Adverse Recommendation Change Termination Fee pursuant to pay any amounts due Section 9.03(a)(ii) or the No Vote Termination Fee pursuant to PJC Section 9.03(a)(iii), as applicable, in accordance with circumstances where such a termination fee is owed as provided in this Section 10.39.03, shall constitute the sole and exclusive remedy of the Company against Bermuda NewCo, US NewCo, Parent and their Subsidiaries (including Merger Sub Ltd. and Merger Sub LLC) and any of their respective former, current or future general or limited partners, shareholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Parent Related Parties”) for all losses and damages suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder, and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly terminated that: (i) this Agreement is terminated by PJC either ITOCHU or ▇▇▇▇ pursuant to Section 10.1(d10.1(b)(i) (but only if the Stockholders Meeting has not been held by the Termination Date) or Section 10.2(f), 10.1(b)(iii) and (iiA) by Convertible Note Holders, including prior to the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to termination under Section 10.1(c10.1(b)(i) or pursuant the taking of a vote to Section 10.1(e) approve this Agreement at the Stockholders Meeting or any adjournment or postponement thereof (unless in the case of a termination pursuant to Section 10.1(e10.1(b)(iii)), PJC’s material breach was an Acquisition Proposal shall have been communicated to the basis for senior management of ▇▇▇▇ or the ▇▇▇▇ board of directors or shall have been publicly announced or publicly made known to the stockholders of ▇▇▇▇, and not withdrawn prior to the Termination Date or such terminationvote to adopt this Agreement, as applicable and (B) within six months after such termination ▇▇▇▇ shall have consummated or entered into a definitive agreement with respect to such Acquisition Proposal; (ii) this Agreement is terminated by ▇▇▇▇ pursuant to Section 10.1(d)(ii); or (iii) this Agreement is terminated by ITOCHU pursuant to Section 10.1(c)(ii), then, in any such case, ▇▇▇▇ shall pay ITOCHU a termination fee of $50,400,000 (the “Termination Fee”), it being understood that in no event shall ▇▇▇▇ be required to pay the Termination Fee on more than one occasion. (b) Payment of the Termination Fee, if applicable, shall be made by wire transfer of same day funds to the account or accounts designated by ITOCHU (1) on the consummation of any transaction contemplated by an Acquisition Proposal in the case of a Termination Fee payable pursuant to Section 10.3(a)(i) or (iii2) by PJC or Emergent pursuant to Section 10.1(bwithin five (5) or Section 10.1(g) anddays after the termination of this Agreement, in the case of this clause Sections 10.3(a)(ii) and (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder ▇▇▇▇ acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC ITOCHU would not enter into this Agreement. Accordingly; accordingly, if Emergent ▇▇▇▇ fails promptly to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax ITOCHU commences a Legal Proceeding suit that results in a judgment against Emergent ▇▇▇▇ for the amounts set forth in this Section 10.3, Emergent ▇▇▇▇ shall pay to PJC and Triax their ITOCHU its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the prime lending rate of ten percent (10%) per annumas published in The Wall Street Journal in effect on the date such payment was required to be made. (d) Simultaneously The Parties agree that if this Agreement is terminated pursuant to Sections 10.1(b)(i) or 10.1(b)(iii) (in each case only as specifically contemplated by Section 10.3(a)(i)), or Section 10.1(c)(ii) or Section 10.1(d)(ii), the delivery of the Termination Fee shall be deemed to be liquidated damages and the sole and exclusive remedy for any and all claims, actions, causes of action, judgments, awards, losses, damages, liabilities, fines, penalties, expenses or costs (including reasonable attorney’s fees and other out-of-pocket costs incurred in investigating, preparing and defending the foregoing) suffered or incurred by ITOCHU or any of its Affiliates or any other Person in connection with the execution and delivery or related to or arising out of this Agreement, Emergent shall cause Lamington Road the transactions contemplated hereby, any oral representation made or alleged to execute have been made in connection herewith or therewith or any matter forming the basis for such termination, and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road neither ITOCHU nor any of its Affiliates or any other Person shall be legally obligated entitled to pay bring or maintain any amounts due other claim, action or proceeding against ▇▇▇▇ any Acquired Entity or any of their respective former, current or future Affiliates arising out of this Agreement, the transactions contemplated hereby, any oral representation made or alleged to PJC have been made in accordance with this Section 10.3connection herewith or therewith or any matter forming the basis for such termination.

Termination Fee. (a) Notwithstanding anything in To the extent this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been is validly terminated in accordance with this Section 14 (i) by PJC pursuant to other than Section 10.1(d14(b)(i) or Section 10.2(f14(c)(iv)), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii)Company shall, within sixty three (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (23) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall termination, pay or cause to be paid to PJC and Triax the Commitment Parties that are not Defaulting Commitment Parties a non-refundable cash payment in an aggregate amount of One Million Five Hundred Thousand Dollars equal to (x) $1,500,000.00) in immediately available funds, 9,440,000 payable as instructed by PJC and Triax. In addition to the foregoingBackstop Parties that are not Defaulting Commitment Parties, and notwithstanding anything in this Agreement allocated pro rata based on each such Backstop Party’s Backstop Commitment Percentage (excluding the Backstop Commitment Percentage of any Defaulting Commitment Party), plus (y) $143,000 payable to the contraryManagement Commitment Parties that are not Defaulting Commitment Parties, and without limiting allocated pro rata based on each such Management Commitment Party’s percentage (its “Management Commitment Percentage”), as set forth on Schedule 1 opposite such Management Commitment Party’s name (excluding the Management Commitment Percentage of any other provision of this Agreement or any other Transaction Document, Defaulting Commitment Party); provided that in the event that (x1) this Agreement has been is validly terminated in accordance with Section 14(c)(xviii) because the RSA was validly terminated in accordance with Section 13.03(a) of the RSA or (2) this Agreement is validly terminated in accordance with Section 14(a)(ii) or Section 14(a)(iii) due to a failure of a condition to closing set forth in Section 11 of this Agreement to be satisfied by Emergent pursuant the Outside Date and (w) such failure is a result of the breach of the RSA by a Consenting Noteholder(s) (as defined in the RSA), (x) the Company has given notice of such breach to Section 10.1(b) and such Consenting Noteholder(s), (y) Emergent has not entered into an Alternative Proposal within sixty ten (60) days of the date of such termination, then within two (210) Business Days following the expiration giving of such sixty notice, either such Consenting Noteholder(s) have failed to cure such breach or this Agreement has been terminated in accordance with Section 14(a)(ii), and (60z) day periodsuch ten (10) Business Day period has elapsed prior to such termination pursuant to Section 14(c)(xviii) or Section 14(a)(iii), PJC then any such breaching Consenting Noteholder who is also a Commitment Party hereunder shall pay or cause not be entitled to their pro rata share of any payment to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in Commitment Parties pursuant to this Agreement to Section. To the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder extent that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any all amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for 14(e) shall have been paid by the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) Company or the applicable Commitment Parties in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery a termination of this Agreement, Emergent the Commitment Parties shall cause Lamington Road not have any additional recourse against the Company for any obligations or liabilities relating to execute and deliver or arising from this Agreement. Absent a change in Law, the Company does not expect to PJC a written undertaking in form and substance satisfactory have an obligation to PJC pursuant to which Lamington Road shall be legally obligated to pay withhold any amounts due to PJC in accordance with this Section 10.3Taxes on any required payment of the termination fee.

Termination Fee. (a) Notwithstanding anything in If (x) Parent exercises its right to terminate this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated (i) by PJC pursuant to under Section 10.1(d7.1(c)(ii) or Section 10.2(f7.1(c)(iii), or (iiy) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant Company exercises its right to terminate this Agreement under Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination7.1(b)(i) or (iii) by PJC or Emergent at a time when Parent is entitled to terminate this Agreement pursuant to Section 10.1(b7.1(c)(ii) or Section 10.1(g7.1(c)(iii), or (z) the Company exercises its right to terminate this Agreement under Section 7.1(d)(ii), the Company shall pay to Parent (i) $52,500,000 (the “Termination Fee”) and (ii) all reasonable documented out-of-pocket fees and expenses (including, without limitation, reasonable fees and expenses of counsel, accountants, investment bankers, experts and consultants) incurred by Parent in connection with the Transactions or related to the authorization, preparation, negotiation, financing, execution and performance of this Agreement and the transactions contemplated hereby up to a maximum amount of $6,000,000 (the “Parent Expenses”). Payments under this Section 7.3(a) shall be made concurrently with termination under Section 7.1(b)(i) or (iii) or Section 7.1(d)(ii) and, in the case of this clause a termination under Section 7.1(c)(ii) or (iiic)(iii), within sixty (60) five business days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJCParent’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergentdemand therefor. (b) Notwithstanding anything in If (i) either Parent or the Company exercises its right to terminate this Agreement under Section 7.1(b)(i) or 7.1(b)(iii) or Parent exercises its right to terminate this Agreement under Section 7.1(c)(i), and (ii) prior to such termination the contraryCompany or any of its Subsidiaries has received an Alternative Proposal (or an Alternative Proposal or an intention to make an Alternative Proposal has been publicly announced), then the Company shall pay to Parent the Parent Expenses within five business days of Parent’s demand therefor. In addition, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of within twelve months after the termination of this Agreement that resulted as described in the making previous sentence, the Company consummates any Alternative Proposal or enters into an Acquisition Agreement relating to any Alternative Proposal and subsequently consummates such Acquisition Proposal within eighteen months after termination of such paymentthis Agreement, then the Company shall pay to Parent the Termination Fee within five business days of Parent’s demand therefor. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery For purposes of this Agreement, Emergent shall cause Lamington Road “Alternative Proposal” means, other than the Transactions, any offer or proposal with respect to execute and deliver to PJC (i) a written undertaking in form and substance satisfactory to PJC merger, consolidation, business combination, reorganization, recapitalization, joint venture, liquidation, dissolution or similar transaction involving the Company pursuant to which Lamington Road shall be legally obligated the shareholders of the Company, immediately prior to pay such transaction, would own less than 75% of the voting equity securities of the entity surviving or resulting from such transaction (or the ultimate parent entity thereof), (ii) any amounts due to PJC in accordance with this Section 10.3purchase or other acquisition of 50% or more of the consolidated assets of the Company or (iii) any purchase or other acquisition (by tender offer, exchange offer or otherwise) of 50% or more of the outstanding voting equity securities of the Company.

Termination Fee. (a) Notwithstanding anything in this Agreement Prior to or concurrently with the contrary, and without limiting any other provision termination of this Agreement pursuant to Section 6.1(c), or within 3 days after any other Transaction Documenttermination pursuant to Section 6.1(d), in FBR Asset shall promptly pay FBR Group an amount equal to the event that this Agreement has been validly terminated sum of (i) by PJC Fourteen Million Two Hundred Thousand dollars ($14,200,000) and (ii) FBR Group's actual expenses related to this Agreement and the transactions contemplated hereby (provided, however, that the maximum amount that FBR Asset shall be required to pay FBR Group pursuant to this clause (ii) shall be Two Million Five Hundred Thousand dollars ($2,500,000) regardless of the actual amount of FBR Group's actual expenses related to this Agreement and the transactions contemplated hereby) (such sum, the "FBR Asset Termination Fee"); provided, however, if this Agreement is terminated in accordance with the provisions of this first sentence of Section 6.3(a) within thirty (30) days of the date hereof, the FBR Asset Termination Fee will be deemed to include only the amount set forth in Section 6.3(a)(i). If this Agreement is terminated pursuant to (x) Section 6.1(b)(iii) and prior to the FBR Asset Special Meeting a proposal for a Competing Transaction with respect to FBR Asset shall have been made public, or (y) pursuant to Section 10.1(d6.1(h) due to the failure or incapability of a condition set forth in Section 10.2(f)5.2(b) to be satisfied, (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), and within sixty (60) days one year of such termination Emergent FBR Asset enters into an agreement with respect to a Competing Transaction, FBR Asset shall pay FBR Group the FBR Asset Termination Fee prior to entering into any agreement with respect to such Competing Transaction. (b) Prior to or consummates concurrently with the termination of this Agreement pursuant to Section 6.1(e) or within 3 days after any termination pursuant to Section 6.1(f), FBR Group shall promptly pay FBR Asset an Alternative Proposal with a third party other than PJC or one amount equal to the sum of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or Eight Million Eight Hundred Thousand dollars ($8,800,000) and (ii) FBR Asset's actual expenses related to this Agreement and the transactions contemplated hereby (provided, however, that the maximum amount that FBR Group shall be required to pay FBR Asset pursuant to this clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Two Million Five Hundred Thousand Dollars dollars ($1,500,000.002,500,000) in immediately available funds, payable as instructed by PJC and Triax. In addition regardless of the actual amount of FBR Asset's actual expenses related to the foregoing, and notwithstanding anything in this Agreement to and the contrarytransactions contemplated hereby) (such sum, and without limiting any other provision the "FBR Group Termination Fee"); provided, however, if this Agreement is terminated in accordance with the provisions of this Agreement or any other Transaction Document, in the event that first sentence of Section 6.3(b) within thirty (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (6030) days of the date hereof, the FBR Group Termination Fee will be deemed to include only the amount set forth in Section 6.3(b)(i); provided, further, however, that the FBR Group Termination Fee shall not exceed the sum of such termination, then within two (2A) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to maximum amount that can be paid to Emergent FBR Asset without causing it to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by FBR Asset's independent accountants, and (B) in the event FBR Asset receives an opinion from outside counsel (a "Termination Fee Tax Opinion") or a ruling from the IRS (a "Termination Fee Ruling"), in either case holding that FBR Asset's receipt of the FBR Group Termination Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements") or that the receipt by FBR Asset of the remaining balance of the FBR Group Termination Fee following the receipt of and pursuant to such ruling or opinion would not be deemed constructively received prior thereto, the FBR Group Termination Fee less the amount payable under clause (A) above; provided, however, that, if the Termination Fee Tax Opinion or the Termination Fee Ruling is based on the absence of One Million Five Hundred Thousand Dollars constructive receipt, the amount that will be paid upon the receipt of the Termination Fee Tax Opinion or the Termination Fee Ruling will be the maximum amount that can be paid at that time without causing FBR Asset to fail the REIT Requirements, as determined by FBR Asset's independent accountants based on the Termination Fee Tax Opinion or Termination Fee Ruling, and any remaining amount payable to FBR Asset pursuant to clause ($1,500,000.00B) shall be paid as soon as it shall be possible to do so without causing FBR Asset to fail the REIT Requirements, as determined by FBR Asset's independent accountants based on the Termination Fee Tax Opinion or Termination Fee Ruling. FBR Group's obligation to pay any unpaid portion of the FBR Group Termination Fee shall terminate five years from the date of this Agreement. In the event that FBR Asset is not able to receive the full FBR Group Termination Fee, FBR Group shall place the unpaid amount in escrow and shall not release any portion thereof to FBR Asset unless and until FBR Asset receives either a Termination Fee Tax Opinion or a Termination Fee Ruling, in which event FBR Group shall pay to FBR Asset the unpaid FBR Group Termination Fee; provided, however, that, if the Termination Fee Tax Opinion or the Termination Fee Ruling is based on the absence of constructive receipt, the amount that will be paid upon the receipt of the Termination Fee Tax Opinion or the Termination Fee Ruling will be the maximum amount that can be paid at that time without causing FBR Asset to fail the REIT Requirements, as determined by FBR Asset's independent accountants based on the Termination Fee Tax Opinion or Termination Fee Ruling, and any remaining amount payable to FBR Asset shall be paid as soon as it shall be possible to do so without causing FBR Asset to fail the REIT Requirements, as determined by FBR Asset's independent accountants based on the Termination Fee Tax Opinion or Termination Fee Ruling. Subject to the satisfaction of the conditions in the immediately available fundspreceding sentence, payable as instructed by Emergent. (b) Notwithstanding anything there is no limitation on the number of distributions that can be made from the escrow prior to the fifth anniversary of the date of this Agreement. Such escrow shall terminate on the fifth anniversary of the date of this Agreement, and any remaining balance in such escrow shall be returned to Oaktree. If this Agreement is terminated pursuant to (x) Section 6.1(b)(iv) and prior to the contrary, if PJC, Triax or Emergent receives FBR Group Special Meeting a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, proposal for a Competing Transaction with respect to any breach FBR Group shall have been made public, or (y) pursuant to Section 6.1(g) due to the failure or incapability of the representationa condition set forth in Section 5.3(b) to be satisfied, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making and within one year of such paymenttermination FBR Group enters into an agreement with respect to a Competing Transaction, FBR Group shall pay FBR Asset the FBR Group Termination Fee prior to entering into any agreement with respect to such Competing Transaction (subject to the limitations set out in this paragraph). (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts Except as set forth in this Section 10.36.3(c), Emergent shall pay to PJC and Triax their costs all fees and expenses (including reasonable attorneys’ incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees and expenses, whether or not the Mergers and the other transactions contemplated hereby are consummated; provided, however, that FBR Asset and FBR Group shall share equally (i) in connection the filing fee of FBR Asset's pre-merger notification report under the HSR Act, if any, and (ii) all fees and expenses, other than accountants' and attorneys' fees, incurred with such Legal Proceedingrespect to the printing, together with interest on filing and mailing (as applicable) of the amounts due Form S-4 and the Proxy Statement, including any related preliminary materials and any amendments or supplements thereto. All fees and expenses payable pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%6.3(c) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3paid by wire transfer of same-day funds.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly terminated that: (i) by PJC (1) this Agreement shall have been terminated pursuant to (x) Section 10.1(d8.1(b)(i) or Section 10.2(f)[End Date] (provided, (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e)a termination by Parent, PJC’s material breach was Company had the basis for such termination) or (iii) by PJC or Emergent right to terminate this Agreement pursuant to Section 10.1(b8.1(b)(i) [End Date], or Company had the right to terminate this Agreement pursuant to Section 8.1(c)(i) [Parent Change in Recommendation] or Section 10.1(g8.1(c)(ii) [Parent Breach of Reps and Warranties or Covenants]), (y) Section 8.1(b)(iii) [Parent No-Vote] or (z) Section 8.1(c)(ii) [Parent Breach of Reps and Warranties or Covenants], (2) Parent or any other Person shall have publicly disclosed or announced a Parent Alternative Proposal made on or after the date of this Agreement but prior to the Parent Meeting, and such Parent Alternative Proposal has not been publicly withdrawn (A) in the case of clause (1)(x) above, prior to the End Date, (B) in the case of clause (1)(y) above, at least five (5) days prior to the date of the Parent Meeting, and (C) in the case of clause (1)(z) above, prior to a material breach that gives rise to Company’s termination right pursuant to Section 8.1(c)(ii), and (3) within twelve (12) months of such termination, a Parent Alternative Proposal is consummated or a Parent Alternative Acquisition Agreement is entered into (which Parent Alternative Proposal is thereafter consummated); provided that, for purposes of this clause (3), the references to “20%” in the definition of “Parent Alternative Proposal” shall be deemed to be references to “more than 50%” and, in the case of clause (1)(x), references in this clause (iii), within sixty (603) days to “Parent Alternative Proposal” shall be with the same Person or Affiliate of such termination Emergent enters into any agreement with respect to or consummates an Person that made the Parent Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two that was made and not publicly withdrawn as set forth in clause (2) Business Days following such termination or with any other Person that submitted a subsequent Parent Alternative Proposal in response to any then pending Parent Alternative Proposal referenced in clause (2); (ii) Company shall have terminated this Agreement pursuant to Section 8.1(c)(i) [Parent Change in Recommendation]; or (iii) Parent shall have terminated this Agreement pursuant to Section 8.1(d)(iii)[Parent Superior Proposal]; then, Parent shall, (A) in the case of clause (i) above, upon the consummation of the Parent Alternative Proposal, pay Company (or one or more of its designees) the Parent Termination Fee less any amount previously paid under Section 8.3(c); (B) in the case of clause (ii)) above, within two (2) Business Days after such termination, pay Company (or entry into such an agreement one or consummation more of such Alternative Proposal its designees) the Parent Termination Fee; and (C) in the case of clause (iii)) Emergent shall above, upon the entry into a Parent Alternative Acquisition Agreement, pay Company (or cause to be paid to PJC and Triax one or more of its designees) the aggregate amount Parent Termination Fee; in each case by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available fundsfunds to one or more accounts designated by Company; it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. Following receipt by Company (or one or more of its designees) of the Parent Termination Fee in accordance with this Section 8.3(a), payable as instructed by PJC and Triax. In addition Parent shall have no further liability with respect to the foregoing, and notwithstanding anything in this Agreement or the transactions contemplated herein to the contrary, and without limiting Company or its Subsidiaries or Affiliates or any other provision Person, other than in respect of Willful Breach of this Agreement or any other Transaction DocumentFraud. 116 (b) In the event that: (i) (1) this Agreement shall have been terminated pursuant to (x) Section 8.1(b)(i) [End Date] (provided, in the event that (x) case of a termination by Company, Parent had the right to terminate this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b8.1(b)(i) [End Date], or Parent had the right to terminate this Agreement pursuant to Section 8.1(d)(ii) [Company Change in Recommendation] or Section 8.1(d)(i) [Company Breach of Reps and Warranties or Covenants]), (y) Emergent Section 8.1(b)(iv) [Company No-Vote] or (z) Section 8.1(d)(i) [Company Breach of Reps and Warranties or Covenants], (2) Company or any other Person shall have publicly disclosed or announced a Company Alternative Proposal made on or after the date of this Agreement but prior to the Company Stockholder Approval Deadline, and such Company Alternative Proposal has not entered into an Alternative Proposal within sixty been publicly withdrawn (60A) in the case of clause (1)(x) above, prior to the End Date, (B) in the case of clause (1)(y) above, at least five (5) days prior to the date of the date Company Stockholder Approval Deadline, and (C) in the case of clause (1)(z) above, prior to a material breach that gives rise to Parent’s termination right pursuant to Section 8.1(d)(i), and (3) within twelve (12) months of such termination, then within two a Company Alternative Proposal is consummated or a Company Alternative Acquisition Agreement is entered into (2) Business Days following the expiration which Company Alternative Proposal is thereafter consummated); provided that, for purposes of such sixty this clause (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a3), such payment the references to “20%” in the definition of “Company Alternative Proposal” shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect references to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, “more than 50%” and, in order the case of clause (1)(x), references in this clause (3) to obtain “Company Alternative Proposal” shall be with the same Person or Affiliate of such payment, PJC and/or Triax commences a Legal Proceeding Person that results in a judgment against Emergent for made the amounts Company Alternative Proposal that was made and not publicly withdrawn as set forth in clause (2) or with any other Person that submitted a subsequent Company Alternative Proposal in response to any then pending Company Alternative Proposal referenced in clause (2); (ii) Parent shall have terminated this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due Agreement pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%8.1(d)(ii) per annum.[Company Change in Recommendation]; or (diii) Simultaneously with the execution and delivery of Company shall have terminated this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC Agreement pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.8.1(c)(iii) [Company Superior Proposal];

Termination Fee. (a) Notwithstanding anything in If: (i) this Agreement is terminated by the Fortis Parties pursuant to Section 7.1(g) (provided such termination is not caused by, or does not result from, the Fortis Parties’ breach of this Agreement); or (ii) this Agreement is terminated by the Fortis Parties pursuant to Section 7.1(e); or (iii) an Acquisition Proposal or any amendment thereto or variation thereof is publicly announced prior to the contrarydate of the First Shareholders’ Meeting, and without limiting any other provision within nine (9) months after the date of termination of this Agreement any Person enters into a definitive agreement with respect to, or consummates, any of the following: (i) direct or indirect acquisition of the assets of the Company or its Subsidiaries equal to 50.01% or more of the Company’s consolidated assets or to which 50.01% or more of the Company’s revenues or earnings on a consolidated basis are attributable (other Transaction Documentthan pursuant to a bona fide securitization transaction) or, (ii) a direct or indirect acquisition of (A) 50.01% or more of the Company’s interest in CF Leasing or (B) 50.01% or more of the outstanding Common Shares, (iii) a tender offer or exchange offer that, if consummated, would result in any Person beneficially owning 50.01% or more of the outstanding Common Shares, or (iv) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company; other than, in any such case, the transactions contemplated by this Agreement; or (iv) this Agreement is terminated as a result of Purchaser failing to exercise its right to make an amended proposal pursuant to Section 8.1(e); or (b) If the Company enters into a Proposed Agreement in accordance with Section 8.1(e); Then, in the event that this Agreement has been validly terminated (i) by PJC pursuant of a termination referred to in Section 10.1(d) or Section 10.2(f8.2(a)(i), the Company shall reimburse the Fortis Parties for their reasonable costs and expenses incurred in connection with this Agreement, including fees of counsel, accountants, and financial advisors, to a maximum of $1,500,000, and (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority event of the aggregate principal amount of the outstanding Convertible Notes pursuant other events referred to Section 10.1(c) or pursuant to Section 10.1(e) in subsection (unless in the case of Section 10.1(ea), PJC’s material breach was and immediately prior to the basis for such termination) or event referred to in subsection (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iiib), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent Company shall pay or cause to be paid to PJC and Triax the aggregate amount Sponsor, by way of One Million Five Hundred Thousand Dollars ($1,500,000.00) in wire transfer of immediately available funds, payable as instructed the sum of $5,950,000, to be reduced by PJC and Triaxany expenses previously reimbursed (the “Termination Fee”). In addition The Company shall not be obligated to the foregoing, and notwithstanding anything in make more than one payment of a Termination Fee under this Agreement to the contrary, and without limiting any other provision of this Agreement Section 8.2 if one or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days more of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC events specified herein occurs. This Section shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of survive the termination of this Agreement that resulted in the making of such paymentAgreement. (c) Emergent and each Consenting Convertible Note Holder acknowledges The Parties acknowledge that the agreements contained in this Section 10.3 8.2 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC the Fortis Parties would not enter into this Agreement. Accordingly, if Emergent Payment of the Termination Fee described in this Section 8.2 shall not be in lieu of damages incurred in the event of an intentional or willful breach of this Agreement but is otherwise the sole and exclusive remedy of the Fortis Parties in connection with any termination of this Agreement as provided in Section 7.1. If the Company fails promptly to pay any amounts due pursuant to this Section 10.3, the Termination Fee and, in order to obtain such payment, PJC and/or Triax Sponsor commences a Legal Proceeding that results suit to collect the Termination Fee, then and in a judgment against Emergent for such event the amounts set forth prevailing Party in this Section 10.3, Emergent any such action shall pay be entitled to PJC and Triax their recovery of its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) from the other Party incurred in connection with the prosecution or defense of any such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumaction. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in In the event this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly is terminated (i) by PJC pursuant to SPAC in accordance with Section 10.1(d10.01(b), Section 10.01(f), Section 10.01(g), Section 10.01(h), Section 10.01(i), Section 10.01(k) or Section 10.2(f10.01(l), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, Company in the aggregate, hold accordance with Section 10.01(c)(ii) at a majority of the aggregate principal amount of the outstanding Convertible Notes time when SPAC is entitled to terminate this Agreement pursuant to Section 10.1(c10.01(b), Section 10.01(f),Section 10.01(g), Section 10.01(h), Section 10.01(i), Section 10.01(k) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination10.01(l) or (iii) by PJC the Company in accordance with Section 10.01(c)(iii) if the final, non-appealable Governmental Order or Emergent pursuant other Law is not generally applicable to Section 10.1(b) all special purpose acquisition companies and not primarily caused by any action or Section 10.1(g) andinaction of SPAC, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent Company shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars SPAC ($1,500,000.00or its designees) in immediately available funds, payable as instructed by PJC and Triax. In addition a fee equal to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that Termination Fee (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following after the expiration date of such sixty termination if the Termination Fee is the Default Termination Fee or (60y) within twelve (12) months after the date of such termination if the Termination Fee is the Reduced Termination Fee, in each case by wire transfer of same-day periodfunds to one or more accounts designated by SPAC; provided that, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00A) in immediately available fundsno event shall the Termination Fee be payable if (I) Company terminates this Agreement pursuant to Section 10.01(c)(i) or Section 10.01(j), payable as instructed by Emergentor (II) this Agreement is terminated at a time when the Company is entitled to terminate this Agreement pursuant to Section 10.01(c)(i) or Section 10.01(j), (B) in no event shall the Company be required to pay the Termination Fee more than once, and (C) in no event will SPAC be entitled to both (I) a remedy of specific performance that enforces the Closing and (II) the receipt of the Termination Fee. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges The parties acknowledge that the agreements contained in this Section 10.3 10.02 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC the parties hereto would not enter into this Agreement. AccordinglyIn addition, if Emergent the Company fails to pay in a timely manner any amounts amount due to SPAC pursuant to this Section 10.310.02, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent then (i) the Company shall reimburse SPAC for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their all costs and expenses (including reasonable attorneys’ disbursements and fees of counsel) incurred in the collection of such overdue amounts and expenses(ii) in connection with such Legal Proceeding, together with the Company shall pay to SPAC interest on the amounts due payable pursuant to this Section 10.3 10.02 from and including the date payment of such amounts was due to but excluding the date of actual payment at a rate equal to three percent (3%) plus the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annummade. (dc) Simultaneously Notwithstanding anything to the contrary in this Agreement, in the event this Agreement is validly terminated in accordance with its terms and the execution Termination Fee is due and delivery payable under the terms hereof then, the SPAC’s sole and exclusive remedy shall be to receive the applicable Termination Fee (and any interest and other amounts payable to SPAC pursuant to Section 10.02(b) or the Promissory Note (collectively, “Interests and Reimbursements”)) from the Company, and upon SPAC’s receipt of the Termination Fee (and any Interests and Reimbursements), none of SPAC or any SPAC Related Party shall have any further liability or obligation relating to or arising out of this Agreement, Emergent shall cause Lamington Road any Ancillary Agreement, any other agreement executed in connection herewith or the transactions contemplated hereby or thereby or any conduct relating hereto or thereto. Notwithstanding anything to execute the contrary herein, SPAC’s rights (i) to receive payment of the applicable Termination Fee and deliver to PJC a written undertaking in form any Interests and substance satisfactory to PJC pursuant to which Lamington Road Reimbursements shall be legally obligated the sole and exclusive remedies (whether at law, in equity, in contract, in tort or otherwise) of SPAC and any of its former, current, or future general or limited partners, direct or indirect stockholders or equityholders, managers, members, directors, officers, employees, Affiliates, Representatives or agents or any former, current or future general or limited partners, direct or indirect stockholders or equityholders, managers, members, directors, officers, employees, Affiliates, Representatives or agents of any of the foregoing (collectively, the “SPAC Related Parties”) against the Company, Pubco and Merger Sub, and any of their respective former, current, or future general or limited partners, direct or indirect stockholders or equityholders, managers, members, directors, officers, employees, Affiliates, Representatives or agents or any former, current or future general or limited partners, direct or indirect stockholders or equityholders, managers, members, directors, officers, employees, Affiliates, Representatives or agents of any of the foregoing (collectively, the “Company Related Parties”) for any loss, cost, damage or expense suffered with respect to pay this Agreement, the Ancillary Agreements, the transactions contemplated hereby and thereby or any amounts due conduct relating hereto or thereto (including any breach by the Company for Actual Fraud), the termination of this Agreement, the failure of the transactions contemplated by this Agreement to PJC be consummated or any breach of this Agreement by the Company (whether willfully, intentionally, unintentionally or otherwise (including, for the avoidance of doubt, Actual Fraud)), and none of the Company Related Parties shall have any liability or obligation to SPAC, its Affiliates or the other SPAC Related Parties under any theory relating to or arising out of this Agreement, any Ancillary Agreements, any other agreement executed in accordance connection herewith or the transactions contemplated hereby or thereby or any conduct relating hereto or thereto or any claims or actions under applicable Law arising out of any such breach, termination or failure. In no event will SPAC be entitled to payment of monetary damages (including in connection with a Willful Breach or Actual Fraud) other than the Termination Fee and any Interests and Reimbursements after the termination of this Section 10.3Agreement.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated If (i) this Agreement is terminated by PJC Cardurion pursuant to Section 10.1(d) or Section 10.2(f8.1.1(g), or (ii) (A) after the Execution Date, an Acquisition Proposal shall have been publicly announced or made known and not withdrawn, (B) thereafter this Agreement is terminated by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Cardurion or Imara pursuant to Section 10.1(c8.1.1(f) and (C) at any time on or pursuant prior to Section 10.1(e) the one-year anniversary of such termination, Imara completes or enters into a definitive agreement providing for, or consummates, a transaction that constitutes an Acquisition Proposal (unless with all references to “fifteen percent (15%)” in the case definition of Section 10.1(eAcquisition Proposal being deemed to be references to “fifty percent (50%)” and disregarding the proviso in the definition of Acquisition Proposal), PJC’s material breach was whether or not such Acquisition Proposal is the basis for such termination) same as the original Acquisition Proposal made, communicated or (iii) by PJC publicly announced or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliatesmade known and not withdrawn, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent Imara shall pay or cause to be paid to PJC and Triax the aggregate amount of Cardurion One Million Five Hundred Thousand Dollars ($1,500,000.001,500,000) (the “Termination Fee”), in cash by wire transfer of immediately available funds to the account designated in writing by ▇▇▇▇▇▇▇▇▇, (1) in immediately available fundsthe case of clause (i), payable as instructed by PJC within [**] following such termination, and Triax(2) in the case of clause (ii), upon the earlier to occur of the consummation of such transaction or Imara’s entry into a definitive agreement with respect to such transaction. In addition Notwithstanding anything to the foregoing, and notwithstanding anything contrary in this Agreement Agreement, if the full Termination Fee shall become due and payable in accordance with this Section 8.1.3, from and after such termination and payment of the Termination Fee in full pursuant to the contraryand in accordance with this Section 8.1.3, and without limiting other than with respect to claims for fraud, neither Imara nor any other provision of its Affiliates or representatives shall have any further Liability of any kind for any reason in connection with this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts hereby other than as set forth in this Section 10.3, Emergent 8.1.3. In no event shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was Imara be required to be made until pay the date of payment at the rate of ten percent (10%) per annumTermination Fee on more than one occasion. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. Section 10.3(a) of the APA is hereby amended and restated in its entirety as follows: (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated If (i) (A) this Agreement is terminated by PJC pursuant to Section 10.1(d) Buyer or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent Parent pursuant to Section 10.1(b) or Section 10.1(g10.1(e), (B) and, in the case prior to such termination of this Agreement, a written Acquisition Proposal is proposed or publicly disclosed, and (C) concurrently with or within twelve (12) months following the termination of this Agreement, either (x) any Acquisition Proposal is consummated with the Third Party (or any Affiliate of such Third Party) that proposed or publicly disclosed any Acquisition Proposal as contemplated by clause (iiia)(i)(B) above (such Third Party or any of its Affiliates an “Acquisition Party”) or (y) Parent or any Seller Party enters into a definitive agreement providing for any Acquisition Proposal with the Acquisition Party, or (ii) this Agreement is terminated by Buyer pursuant to Section 10.1(f), within sixty then in any such event Parent shall pay to Buyer a fee of $2,200,000 in cash (60the “Termination Fee”), such payment to be made promptly, but in any event no later than (x) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) ), the earlier to occur of the consummation of such Acquisition Proposal or clause (ii)) or the entry into such definitive agreement for an agreement Acquisition Proposal or consummation of such Alternative Proposal (y) in the case of clause (iiiii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following after the expiration termination of such sixty this Agreement, it being understood that in no event shall Parent be required to pay the Termination Fee on more than one occasion; provided, however, that Parent shall not be required to pay Buyer the Termination Fee pursuant to Section 10.3(a)(i), if, as of the date this Agreement is terminated, neither of the conditions precedent in Section 9.1(e) have been satisfied (60) day period, PJC shall pay or cause to the extent required to be paid to Emergent the amount satisfied). For purposes of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), the term “Acquisition Proposal” shall have the meaning assigned to such payment term in Section 7.7(g)(i), except that (1) the reference in clause (A) thereof to “any of the Acquired Assets” shall be deemed replaced by “50% or more of the fair market value of the Acquired Assets” and the references in clauses (B) and (C) thereof to be liquidated damages, and “15” shall be its sole replaced by “50” and exclusive remedy, with respect to any breach of (2) the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road proviso therein shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3disregarded.”.

Termination Fee. In the event that (ai)(A) Notwithstanding anything in this Agreement the Initial Closing shall not have occurred on or prior to the contrarydate that is fifteen (15) Business Days after the date hereof or (B) the Subsequent Closing shall not have occurred on or prior to the date that is six (6) months after the Initial Closing Date (the “Outside Date”), and without limiting (ii) such failure is primarily attributable to (A) a willful and material breach by Space-Eyes or ▇▇▇▇▇▇▇▇ of any other provision of representation, warranty, covenant or agreement contained in this Agreement or any other Transaction Document, (B) the failure by Space-Eyes or ▇▇▇▇▇▇▇▇ to satisfy (or obtain a waiver of) any condition to Closing set forth in Section 8 that is within the event that this Agreement has control of Space-Eyes or ▇▇▇▇▇▇▇▇, or (C) Space-Eyes’s or ▇▇▇▇▇▇▇▇’▇ refusal to consummate the Closing when all conditions to Closing set forth in Section 7 have been validly terminated satisfied or waived (i) by PJC pursuant to Section 10.1(d) or Section 10.2(feach of (A), (iiB) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) and (unless in the case of Section 10.1(eC), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iiia “Seller Termination Event”), then Space-Eyes and ▇▇▇▇▇▇▇▇ shall, jointly and severally, pay to each Buyer, within sixty five (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (25) Business Days following written demand therefor from such termination Buyer, an amount in cash equal to such Buyer’s Pro Rata Portion of the Termination Fee (in as defined below); provided, however, that no Termination Fee shall be payable if, as of the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in Outside Date, the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Business Combination Agreement has been validly terminated terminated, other than as a result of (A) a willful and material breach by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days Space-Eyes or ▇▇▇▇▇▇▇▇ of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation covenant or agreement hereunder that was contained in Business Combination Agreement, (B) the basis failure by Space-Eyes or ▇▇▇▇▇▇▇▇ to satisfy (or obtain a waiver of) any condition to the closing of the termination of this Business Combination Agreement that resulted in is within the making control of such payment. Space-Eyes or ▇▇▇▇▇▇▇▇, or (cC) Emergent and each Consenting Convertible Note Holder acknowledges that Space-Eyes’s or ▇▇▇▇▇▇▇▇’▇ refusal to consummate the agreements contained in this Section 10.3 are an integral part closing of the transactions contemplated by this Business Combination Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails when all conditions to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts closing set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumtherein have been satisfied or waived. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly is terminated by Horizon or Pasha pursuant to Section 9.1(a)(iii) following termination of the Merger Agreement by Horizon pursuant to Section 7.1(d)(ii) thereof, Horizon shall pay or cause to be paid as directed by Pasha a termination fee of (i) $4,950,400 plus (ii) all of Pasha’s documented, out-of-pocket costs and expenses (collectively, the “Termination Fee”) substantially concurrently with the termination of this Agreement. (b) In the event that this Agreement is terminated by PJC Horizon or Pasha pursuant to Section 10.1(d9.1(a)(iii) or Section 10.2(f), following termination of the Merger Agreement by Parent (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, as defined in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Merger Agreement) pursuant to Section 10.1(c7.1(c)(ii) thereof, Horizon shall pay or pursuant cause to Section 10.1(e) (unless in be paid as directed by Pasha the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then Termination Fee within two (2) Business Days of such termination. (c) In the event that this Agreement is terminated by Horizon or Pasha pursuant to Section 9.1(a)(iii) following such termination (in of the case of clause Merger Agreement (i) by Parent or clause Horizon pursuant to Section 7.1(b)(iii) thereof, (ii)) or entry into such an agreement or consummation of such Alternative Proposal (as defined in the case Merger Agreement) shall have been publicly disclosed after the date hereof and not publicly withdrawn prior to the date of clause Horizon Stockholder Meeting (as defined in the Merger Agreement), and (iii)) Emergent within twelve (12) months of the date the Merger Agreement is terminated, Horizon enters into an agreement with respect to any Alternative Proposal, then Horizon shall pay or cause to be paid as directed by Pasha the Termination Fee on the date of consummation of such transaction. (d) In no event shall Horizon be required to PJC and Triax pay the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) fees referred to in immediately available funds, payable as instructed by PJC and Triaxthis Section 9.4 on more than one occasion. In addition Notwithstanding anything to the foregoing, and notwithstanding anything contrary in this Agreement Agreement, the parties agree that the payment of the Termination Fee shall be the sole and exclusive remedy available to the contrary, Pasha and without limiting any other provision of Person (whether at law, in equity, in contract, in tort or otherwise) with respect to this Agreement and the Transactions in the event any such payment becomes due and payable, and, upon payment of the Termination Fee, neither Horizon nor any of its Affiliates or its and their respective directors, officers, employees, stockholders and Representatives shall have any further liability, whether at law or equity, in contract, in tort or otherwise, to Pasha or any other Transaction DocumentPerson under this Agreement, the transactions contemplated hereby (or the abandonment or termination thereof) or any matter forming the basis for any termination hereof, and neither Pasha nor any other Person shall be entitled to bring or maintain any claim, action or proceeding against Horizon or any of its Affiliates or its and their respective directors, officers, employees, stockholders and Representatives arising out of or in connection with this Agreement, any of the transactions contemplated hereby (or the abandonment or termination thereof) or any matters forming the basis for any termination hereof. For the avoidance of doubt, in the event that a Termination Fee (xas defined in the Merger Agreement) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(bbecome payable under the Merger Agreement, the Termination Fee (as defined herein) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergentalso become payable. (be) Notwithstanding anything in Any amount that becomes payable pursuant to this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment 9.4 shall be deemed paid by wire transfer of immediately available funds to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such paymentan account designated by Pasha. (cf) Emergent and each Consenting Convertible Note Holder acknowledges The parties acknowledge that the agreements contained in this Section 10.3 9.4 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC the parties would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in If this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly shall be terminated pursuant to: (i) by PJC pursuant to Section 10.1(d7.1(b)(i), 7.1(b)(ii) or Section 10.2(f)7.1(d)(i) and (x) at any time after the date hereof and before such termination a Takeover Proposal shall have been publicly announced or otherwise communicated to the Company’s Board of Directors and (y) within twelve (12) months of the termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to a Takeover Proposal or any such transaction involving a Takeover Proposal is consummated; or (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c7.1(c)(ii) or pursuant to Section 10.1(e7.1(d)(ii) hereof, then the Company shall (unless 1) in the case of termination pursuant to clause (i) of this Section 10.1(e7.3(a), PJC’s material breach was upon the basis for such terminationconsummation of a transaction referenced in clause (y) or thereof, (iii2) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iiitermination pursuant to Section 7.1(d)(ii), within sixty (60) days not later than the close of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) business on the Business Days Day following such termination termination, or (3) in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent termination pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of 7.1(c)(ii), on the date of such termination, then within pay Buyer a non-refundable fee in an amount equal to six million two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars hundred fifty thousand dollars ($1,500,000.006,250,000) in (the “Termination Fee”), payable by wire transfer of immediately available fundsfunds to an account designated in writing to the Company by Buyer. For purposes of this paragraph (a), payable as instructed by Emergent“Takeover Proposal” shall have the meaning assigned to such term in Section 9.1, except that all references to “15%” shall be changed to “35%”. (b) If this Agreement is terminated under any of the circumstances described in Section 7.3(a) (but with respect to Section 7.3(a)(i), without regard to whether any of the circumstances described in clause (y) thereof have occurred), the Company shall reimburse Buyer for all its documented out-of-pocket fees and expenses up to a maximum amount of $1,250,000 (including attorney’s fees and any commitment and other fees payable by Buyer under any financing commitment letter Buyer has secured) incurred in connection herewith and the transactions contemplated hereby (the “Company Expense Reimbursement Amount”), which reimbursement shall be made in cash by wire transfer of immediately available funds to an account designated in writing to the Company by Buyer, not later than the close of business on the fifth (5th) Business Day following such termination. Notwithstanding anything to the contrary in this Agreement Agreement, the parties hereby acknowledge that in the event that both the Termination Fee and the Company Expense Reimbursement Amount are paid by the Company pursuant to this Section 7.3, the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment Termination Fee and Company Expense Reimbursement Amount shall be deemed to be liquidated damages, Buyer’s and shall be its Merger Sub’s sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of remedy for monetary damages under this Agreement that resulted in the making of such paymentAgreement. (c) Emergent and each Consenting Convertible Note Holder acknowledges that If the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent Company fails to promptly pay any amounts due pursuant to this Section 10.3the Termination Fee or the Company Expense Reimbursement Amount, and, in order to obtain such payment, PJC and/or Triax payment Buyer commences a Legal Proceeding suit that results in a judgment against Emergent the Company for the amounts set forth in this Section 10.3Termination Fee or the Company Expense Reimbursement Amount, Emergent the Company shall pay to PJC and Triax their Buyer its costs and expenses (including reasonable attorneys’ fees and expensesattorney’s fees) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant amount of the Termination Fee at a rate equal to this Section 10.3 the prime rate announced from the date such payment was required time to be made until the date of payment at the rate of ten percent (10%) time by Wachovia Bank, National Association plus 3% per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly shall be terminated (i) by PJC PurchasePro pursuant to Section 10.1(dSections 9.2(c) or Section 10.2(f9.2(e), above, or (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, --------------- ------ Stockholder or the Company in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes any manner other than pursuant to Section 10.1(cSections 9.2(a), --------------- 9.2(b) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e9.2(d)(i), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in either case, the case of this clause (iii), within sixty (60) days of such termination Emergent Company or the Stockholder accepts ------ --------- an offer for a Proposed Acquisition Transaction or enters into any agreement with respect to or consummates an Alternative Proposal with granting a third party other than PJC or one an exclusive right to any assets of PJC’s Affiliates, then the Company within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date years of such termination, then within two (2then, in any such event, in addition to repayment of the $1,500,000 paid to the Stockholder under Section 2.2(a) Business Days following and the expiration of such sixty (60) day period-------------- $3,500,000 paid to the Company under Section 2.2(d), PJC respectively, and any other -------------- remedies PurchasePro may have, the Stockholder and the Company shall pay or cause to be paid to Emergent PurchasePro the amount sum of One Five Million Five Hundred Thousand Dollars ($1,500,000.005,000,000) in immediately available fundscash, which shall be due and payable as instructed in full upon request by EmergentPurchasePro. All payments pursuant to this Section 9.3(a) shall ------------- be made by wire transfer of same-day funds to an account specified by PurchasePro. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder Each party acknowledges that the agreements contained in this Section 10.3 Sections -------- 9.2(b) and 9.3 hereof are an integral part of the transactions contemplated by ----- --- this Agreement Agreement, and that, without these agreements, PJC the other party would not enter into this Agreement. Accordingly; accordingly, if Emergent a party fails promptly to pay any amounts the amount due pursuant to this Section 10.3, 9.3 and, in order to obtain such payment, PJC and/or Triax ----------- PurchasePro commences a Legal Proceeding that suit which results in a judgment against Emergent judgement or settlement for the amounts fee set forth in this Section 10.39.3, Emergent the liable party shall pay to PJC and Triax their PurchasePro its ----------- costs and expenses (including reasonable attorneys’ ' fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to this Section 10.3 from amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annummade. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed (i) (A) prior to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted Agreement, any Alternative Proposal (substituting 20% for the 15% thresholds set forth in the making definition of "Alternative Proposal;" PROVIDED, that any proposals for the acquisition of any of the Proposed Divestitures shall not be included in the calculation of such payment20% threshold with respect to assets of the Company and its Subsidiaries) is publicly proposed or publicly disclosed prior to, and not withdrawn at the time of, the Company Meeting, (B) this Agreement is terminated by Parent or the Company pursuant to Section 7.1(d) and (C) concurrently with or within nine (9) months after such termination, a transaction the proposal of which would constitute an Alternative Proposal (substituting 50% for the 15% thresholds set forth in the definition of "Alternative Proposal") (a "QUALIFYING TRANSACTION") shall have occurred or any definitive agreement providing for a Qualifying Transaction shall have been entered into or (ii) this Agreement is terminated by the Company pursuant to Section 7.1(g) or by Parent pursuant to Section 7.1(h), then in any such event the Company shall pay to Parent a fee of $171,900,000 in cash, such payment to be made, in the case of termination by the Company pursuant to Section 7.1(g), concurrently with such termination, or in the case of termination by Parent pursuant to Section 7.1(h), two (2) business days after the date of such termination, or, otherwise, upon the earlier of (i) consummation of such Qualifying Transaction and (ii) entry into a definitive agreement providing for a Qualifying Transaction, it being understood that in no event shall the Company be required to pay the fee referred to in this Section 7.2(a) on more than one occasion. (cb) Emergent and each Consenting Convertible Note Holder The Company acknowledges that the agreements contained in this Section 10.3 7.2 are an integral part of the transactions contemplated by this Agreement Agreement, and that, that without these agreements, PJC Parent would not enter into this Agreement. Accordingly, if Emergent the Company fails to pay any in a timely manner the amounts due pursuant to this Section 10.37.2, and, in order to obtain such payment, PJC and/or Triax commences Parent makes a Legal Proceeding claim that results in a judgment against Emergent for the amounts set forth in this Section 10.3Company, Emergent the Company shall pay to PJC and Triax their Parent Parent's reasonable costs and expenses (including reasonable attorneys’ ' fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to set forth in this Section 10.3 from 7.2 at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made until made. Payment of the date fees described in this Section 7.2 shall not be in lieu of payment at damages incurred in the rate event of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery an intentional breach of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in If this Agreement is validly terminated pursuant to Section 7.1(e) or Section 7.1(f), then, within one business day after the contrary, and without limiting any other provision termination of this Agreement pursuant to Section 7.1(e) or any other Transaction Documentsimultaneously with the termination of this Agreement pursuant to Section 7.1(f), the Company shall cause to be paid to Parent, in cash, by wire transfer of immediately available funds to an account designated by Parent, a termination fee in the event that this Agreement has been validly terminated amount of $5,600,000. (b) If (i) this Agreement is validly terminated by PJC Parent or the Company pursuant to Section 10.1(d7.1(c), by Parent or the Company pursuant to Section 7.1(j) by reason of the Minimum Condition not having been satisfied, or by Parent pursuant to clause “(ii)” of Section 10.2(f7.1(g), (ii) by Convertible Note Holders, including at or prior to the Consenting Convertible Note Holders, that, in the aggregate, hold a majority time of the aggregate principal amount termination of this Agreement a Person or “group” shall have publicly disclosed or otherwise communicated to the Company’s board of directors an Alternative Acquisition Proposal (and such Alternative Acquisition Proposal shall not have been withdrawn prior to the time of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case termination of Section 10.1(ethis Agreement), PJC’s material breach was the basis for such termination) or and (iii) by PJC within 365 days after the date of termination of this Agreement, the Company or Emergent pursuant a Company Subsidiary shall have entered into a definitive agreement with respect to Section 10.1(b) an Alternative Acquisition Proposal or Section 10.1(g) andan Alternative Acquisition Proposal shall have been consummated (provided, that in the case each case, for purposes of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect each reference to “20%” or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (“80%” in the case definition of clause (i) or clause (iiAlternative Acquisition Proposal shall be deemed to be a reference to “50%”)) or entry into such an agreement or consummation , then, concurrently with the occurrence of such Alternative Proposal (the applicable event described in the case of clause (iii)) Emergent , the Company shall pay or cause to be paid to PJC and Triax the aggregate amount Parent, in cash, by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available fundsfunds to an account designated by Parent, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything a termination fee in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment5,600,000. (c) Emergent and each Consenting Convertible Note Holder The Company acknowledges that the agreements contained in this Section 10.3 7.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC Parent would not enter into this Agreement. Accordingly; accordingly, if Emergent the Company fails to pay any in a timely manner the amounts due pursuant to this Section 10.37.3, and, in order to obtain such payment, PJC and/or Triax commences Parent makes a Legal Proceeding claim that results in a judgment against Emergent the Company for the amounts set forth in this Section 10.37.3, Emergent the Company shall pay to PJC and Triax their Parent the reasonable costs and expenses of Parent (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to set forth in this Section 10.3 from 7.3 at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made until made. In the date event that Parent shall receive a termination fee pursuant to this Section 7.3, the receipt of payment at such fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Acquisition Sub or any of their respective controlled Affiliates in connection with this Agreement (and the rate termination hereof), the Merger (and the abandonment thereof) or any matter forming the basis for such termination, and none of ten percent (10%) per annum. (d) Simultaneously with Parent, Acquisition Sub, any of their respective controlled Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the execution Company or any of its subsidiaries or any of their respective affiliates arising out of this Agreement and delivery the transactions contemplated thereby, including the Offer and the Merger, or any matters forming the basis for such termination, in each case, other than in the event of an intentional and material breach of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in In the event that: (i) this Agreement is terminated by the Partnership or Parent pursuant to Section 7.01(b)(i) or Section 7.01(b)(iii) or by Parent pursuant to Section 7.01(c)(i); provided that (A) a bona fide Takeover Proposal shall have been made to the contraryPartnership Board or publicly made, and without limiting any other provision proposed or communicated by a third party after the date of this Agreement and not withdrawn prior to the time this Agreement is terminated and (B) within 12 months of the date this Agreement is terminated, the Partnership enters into a definitive agreement to consummate any Takeover Proposal or consummates any other Transaction DocumentTakeover Proposal; provided that, for purposes of clauses (A) and (B) of this Section 7.03(a)(i), the references to “15%” in the event that definition of Takeover Proposal shall be deemed to be references to “50%”; or (ii) this Agreement has been validly is terminated (iA) by PJC Parent pursuant to Section 10.1(d7.01(c)(ii) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Partnership or Parent pursuant to Section 10.1(c7.01(b)(i) or if Parent could have terminated this Agreement pursuant to Section 10.1(e7.01(c)(ii) (unless in the case of Section 10.1(e)at such time, PJC’s material breach was the basis for such termination) or (iiiB) by PJC or Emergent the Partnership pursuant to Section 10.1(b) or Section 10.1(g) and7.01(d)(ii); then, in the case of this clause (iii), within sixty (60) days of any such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of event under clause (i) or clause (ii) of this Section 7.03(a)) or entry into such an agreement or consummation of such Alternative Proposal (in , the case of clause (iii)) Emergent Partnership shall pay or cause to be paid the Partnership Termination Fee to PJC and Triax the aggregate amount Parent or its designee by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed same-day funds to an account designated by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that Parent for such payment (x) this Agreement has been validly terminated by Emergent pursuant to in the case of Section 10.1(b) and 7.03(a)(ii)(A), within two business days after such termination, (y) Emergent has not entered into an Alternative Proposal in the case of Section 7.03(a)(ii)(B), simultaneously with such termination or (z) in the case of Section 7.03(a)(i), within sixty (60) two business days after the earlier of the date entry into a definitive agreement or the consummation of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC Takeover Proposal referred to therein; it being understood that in no event shall the Partnership be required to pay or cause to be paid the applicable Partnership Termination Fee on more than one occasion. In the event that the Parent Expenses have been actually paid by the Partnership pursuant to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00Section 7.03(c) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a upon subsequent payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due Partnership Termination Fee pursuant to this Section 10.37.03(a), and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on amount of the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road Parent Expenses shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3credited towards the payment of the Partnership Termination Fee.

Termination Fee. (a) Notwithstanding anything in If this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated shall be terminated: (i) by PJC OBDE pursuant to Section 10.1(d9.01(c)(iv), then, prior to, and as a condition to such termination, OBDE shall cause the third party that made the applicable OBDE Superior Proposal (or its designee) to pay OBDC, subject to applicable Law, a non-refundable fee in an amount equal to $57,600,000 (the “OBDE Termination Fee”) as liquidated damages and full compensation hereunder; or (ii) (A) by (1) OBDC or OBDE pursuant to (x) any provision of Section 9.01 at a time when the Agreement was terminable by OBDC pursuant to Section 9.01(d)(ii) or Section 10.2(f9.01(d)(iii), (iiy) by Convertible Note HoldersSection 9.01(b)(ii) or (z) Section 9.01(b)(iv), including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes or (2) OBDC pursuant to Section 10.1(c9.01(d)(i) (solely to the extent that OBDE has committed a willful or intentional breach), 9.01(d)(ii) or 9.01(d)(iii), (B) a Takeover Proposal has been publicly disclosed after the date of this Agreement and, prior to the date of such termination, has not been withdrawn (1) with respect to any termination pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination9.01(b)(ii) or 9.01(d)(i) prior to the date of such termination and (iii2) by PJC or Emergent with respect to any termination pursuant to Section 10.1(b9.01(b)(iv) or Section 10.1(gprior to the time of the duly held OBDE Stockholders Meeting, and (C) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent OBDE enters into any agreement a definitive Contract with respect to such Takeover Proposal within 12 months after such termination, and such Takeover Proposal is subsequently consummated (regardless of whether such consummation happens prior to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliatesfollowing such 12-month period), then then, within two (2) Business Days following after the date that such termination (in Takeover Proposal is consummated, OBDE shall cause the case of clause (i) or clause (ii)) or entry into third party that made such an agreement or consummation of such Alternative Takeover Proposal (in or its designee) to pay OBDC, subject to applicable Law, the case of clause (iii)) Emergent shall pay or cause to be paid to PJC OBDE Termination Fee as liquidated damages and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available fundsfull compensation hereunder; provided, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision that for purposes of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a9.02(a)(ii), the term “Takeover Proposal” will have the meaning assigned to such payment shall term in Article X, except that references to “25%” will be deemed to be liquidated damages, and references to “50%.” The OBDE Termination Fee shall be its sole and exclusive remedy, with respect paid by wire transfer of immediately available funds to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted an account designated in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated writing to OBDE by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, OBDC if Emergent fails OBDC shall have furnished to pay any amounts due pursuant OBDE wire payment instructions prior to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at or, otherwise, by certified or official bank check. In the rate of ten percent (10%) per annum. (d) Simultaneously with event that the execution OBDE Termination Fee becomes payable and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC is paid pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.this

Termination Fee. (ai) Notwithstanding anything in In the event that: (A) this Agreement is terminated by the Company pursuant to Section 8.1(f); or (B) this Agreement is terminated by Parent pursuant to Section 8.1(e). then in the contrarycase of (A) or (B) above, the Company shall promptly, but in no event later than the date of the earliest such event, pay to Parent a fee equal to Five Million Nine Hundred Eighty-Two Thousand Dollars ($5,982,000)(the “Company Termination Fee”), payable by wire transfer of same day funds; provided, however, that, in the case of any termination pursuant to Section 8.1(f), the Company Termination Fee shall be payable prior to, and without limiting any other provision of this Agreement or any other Transaction Documentas a condition to, in such termination. (ii) In the event that this Agreement has been validly is terminated (i) by PJC Parent pursuant to Section 10.1(d) or Section 10.2(f8.1(g), Parent shall promptly, but in no event later than the date of the earliest such event, pay to the Company a fee equal to Five Million Nine Hundred Eighty-Two Thousand Dollars (ii$5,982,000) (the “Parent Termination Fee”), payable by Convertible Note Holderswire transfer of same day funds; provided, including the Consenting Convertible Note Holdershowever, that, in the aggregate, hold a majority case of the aggregate principal amount of the outstanding Convertible Notes any termination pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e8.1(g), PJC’s material breach was the basis for Parent Termination Fee shall be payable prior to, and as a condition to, such termination) or . (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days Each of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, Company and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder Parent acknowledges that the agreements contained in this Section 10.3 8.3(b) are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC each Party would not enter into this Agreement. Accordingly, if Emergent the Company or Parent fails promptly to pay any amounts make a payment due pursuant to this Section 10.38.3(b), and, in order to obtain such payment, PJC and/or Triax Parent or Merger Sub on the one hand, or the Company on the other hand, commences a Legal Proceeding suit that results in a judgment against Emergent for the amounts set forth in this Section 10.3other Party, Emergent such other Party shall pay to PJC Parent and Triax Merger Sub or the Company, as applicable, their reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to amount set forth in this Section 10.3 8.3(b) at the publicly announced prime rate of Bank of America, N.A. plus two percent (2.0%) per annum, compounded quarterly, from the date such payment was required to be made until paid. Payment of the date fees described in this Section 8.3(b) shall not be in lieu of payment at damages incurred in the rate event of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery a breach of this Agreement, Emergent Agreement described in Section 8.2. In no event shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall more than one Company Termination Fee or Parent Termination Fee be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3payable hereunder.

Termination Fee. Section 5.7(g) of the Agreement is hereby deleted and replaced in its entirety to read as follows: “The Debtors shall pay a fee in an amount equal to $11,000,000 (a“Termination Fee”) Notwithstanding anything (which amount is inclusive of all expenses, except for expenses of $250,000 that were authorized and will be reimbursed pursuant to the Expense Reimbursement Order) to Purchaser in the event that the Debtors (i) accept a Bid, other than that of Purchaser, as the highest and best offer, (ii) sell, transfer, lease or otherwise dispose directly or indirectly, including through an asset sale, stock sale, merger, reorganization or other similar transaction (by any Debtor or otherwise), all or substantially all or a material portion of the Acquired Assets (or agree to do any of the foregoing) in a transaction or series of transactions to a party or parties other than Purchaser within one year from the date hereof, or (iii) choose not to sell, transfer, lease or otherwise dispose of, directly or indirectly, including through an asset sale, stock sale, merger, reorganization or other similar transaction (by any Debtor or otherwise), all or substantially all or a material portion of the Acquired Assets (or agree to do any of the foregoing) to Purchaser whether as a result of the proposal of a stand-alone plan of reorganization or otherwise (either of clause (i), (ii) or (iii), an “Alternative Transaction”); provided however, that in no event shall the Termination Fee be payable to Purchaser (1) if Purchaser terminates this Agreement pursuant to Section 7.1(a)(vi), the contraryproviso to Section 7.l(a)(viii)(3), and without limiting any other provision Section 7.1(a)(ix) or Section 7.1(a)(x); (2) if this Agreement is terminated by the Debtors pursuant to Section 7.l(a)(iii)(A); (3) if this Agreement is terminated pursuant to Section 7.1(a)(i); (4) if on the last day of the month that all of the conditions set forth in Section 6.2 of this Agreement (with such date replacing the terms “Closing” and “Closing Date” in Section 6.2 of this Agreement) have been satisfied or any other Transaction Documentwaived without the Closing having occurred Purchaser fails to consummate the transaction contemplated by this Agreement; or (5) if this Agreement is terminated by Purchaser pursuant to Section 7.1(a)(v)(A) solely because of the filing of a motion to convert the Debtors’ cases under Chapter 7. Moreover, in the event that this Agreement has been validly terminated (ithe Debtors accept a Bid, other than that of Purchaser, as the highest and best offer, but that Alternative Transaction fails to close and Purchaser ultimately acquires all or substantially all of the assets of the Debtors, Purchaser shall not be entitled to the Termination Fee, and any Termination Fee paid to Purchaser will be returned to the Debtors. The obligations of the Debtors to pay the Termination Fee shall be entitled to administrative expense status under Section 503(b)(1) by PJC pursuant to Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, Bankruptcy Case and shall be its sole become due and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of payable upon the termination of this Agreement that resulted in as provided for hereunder and the making of such paymentBidding Procedures Order. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.”

Termination Fee. (a) Notwithstanding anything in If this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly is terminated (i) by PJC pursuant to Section 10.1(d10.1(a)(iii), 10.1(a)(vi) or Section 10.2(fl0.l(a)(vii), then (iia)(i) Seller shall pay Twenty Million U.S. Dollars (U.S.$20,000,000) to Purchaser and reimburse Purchaser and its Affiliates for all charges and expenses incurred in connection with this Agreement and the transactions contemplated by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold this Agreement up to a majority of the aggregate principal maximum amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) Five Million U.S. Dollars (unless in the case of Section 10.1(eU.S.$5,000,000), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) andas promptly as reasonably practicable, and in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other no event more than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of after the date of such terminationtermination payable by wire transfer of immediately available funds to such account or accounts as Purchaser may designate and (ii) Purchaser’s obligations under the ninth paragraph of the Confidentiality Agreement (relating to non-solicitation of employees) shall terminate and be without further force or effect and (b) if, then within eighteen (18) months following such termination of this Agreement, Seller shall complete any Alternative Proposal, Seller shall pay Purchaser an additional Fifty-Five Million U.S. Dollars (U.S.$55,000,000), as promptly as reasonably practicable, and in no event more than two (2) Business Days following after the expiration date of completion of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount Alternative Proposal payable by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable funds to such account or accounts as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder Purchaser may designate. Seller acknowledges that the agreements contained in this Section 10.3 10.2 are an integral part of the transactions contemplated by this Agreement Transactions and that, without these agreements, PJC Purchaser would not enter into this Agreement. Accordingly, if Emergent Seller fails promptly to pay any amounts amount due pursuant to this Section 10.3, 10.2 and, in order to obtain such payment, PJC and/or Triax Purchaser commences a Legal Proceeding that suit which results in a judgment against Emergent Seller for the amounts fee set forth in this Section 10.310.2, Emergent Seller shall pay to PJC and Triax their Purchaser its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to this Section 10.3 from amount of the fee at the Prime Rate in effect on the date such payment was required to be made until made. The payment of the date fees contemplated by this Section 10.2 shall be in addition to, and not in limitation of, any other remedies or damages to which Purchaser shall be entitled in equity or law as a result of payment at the rate any willful breach by Seller of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of its covenants under this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly terminated that: (i) this Agreement is terminated by PJC DWM pursuant to Section 10.1(d) or Section 10.2(f‎Section 9.1(d), ; (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes this Agreement is terminated pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g‎Section 9.1(b) and, in at the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date time of such termination, then within two (2x) all of the conditions set forth in Sections 8.1 and 8.3 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, provided that each of such conditions is capable of being satisfied at the Closing), (y) DWM has irrevocably confirmed by written notice to ICLK that all conditions set forth in Section 8.2 have been satisfied, or that it is willing to waive any unsatisfied condition in Section 8.2, and that DWM is ready, willing and able to complete the Merger, and (z) ICLK and/or Merger Sub shall have failed to take necessary steps on its part to effect the Closing prior to the earlier of the Outside Date and twenty (20) Business Days following the expiration of such sixty anticipated Closing Date as set forth under Section 2.2; or (60iii) day periodthis Agreement is terminated pursuant to ‎Section 9.1(f), PJC then ICLK shall pay pay, or cause to be paid paid, to Emergent DWM or its designees an amount in cash equal to US$1,200,000 (the amount “ICLK Termination Fee”) by wire transfer of One Million Five Hundred Thousand Dollars same day funds as promptly as possible ($1,500,000.00but in any event (x) within five (5) Business Days after such termination); it being agreed that in immediately available funds, payable as instructed by Emergentno event shall the Company be required to pay the Company Termination Fee more than once. (b) Notwithstanding anything in In the event that: (i) this Agreement is terminated by ICLK pursuant to ‎Section 9.1(e); (ii) this Agreement is terminated pursuant to ‎Section 9.1(b) and, at the contrarytime of such termination, if PJC(x) all of the conditions set forth in Sections 8.1 and 8.2 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, Triax provided that each of such conditions is capable of being satisfied at the Closing), (y) ICLK and Merger Sub have irrevocably confirmed by written notice to DWM that all conditions set forth in Section 8.3 have been satisfied, or Emergent receives a payment that they are willing to waive any unsatisfied condition in Section 8.3, and that ICLK and Merger Sub are ready, willing and able to complete the Merger, and (z) DWM shall have failed to take necessary steps on its part to effect the Closing prior to earlier of the Outside Date and twenty (20) Business Days following the anticipated Closing Date as set forth under Section 10.3(a2.2; or (iii) this Agreement is terminated pursuant to ‎Section 9.1(c), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, but solely with respect to such Order or action permanently restraining, enjoining or otherwise prohibiting the DWM Asset Restructuring, then DWM shall pay, or cause to be paid, to ICLK or its designees an amount in cash equal to $1,200,000 (the “DWM Termination Fee”) by wire transfer of same day funds as promptly as possible (but in any breach of event (x) within five (5) Business Days after such termination); it being agreed that in no event shall DWM be required to pay the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such paymentDWM Termination Fee more than once. (c) Emergent In the event that ICLK fails to pay the ICLK Termination Fee, or DWM fails to pay the DWM Termination Fee, when due and in accordance with the requirements of this Agreement, ICLK, on the one hand, or DWM, on the other hand, as the case may be, shall reimburse the other for reasonable costs and expenses actually incurred or accrued by the other Party or Parties (including fees and expenses of counsel) in connection with the collection under and enforcement of this ‎Section 9.3, together with interest on such unpaid ICLK Termination Fee or DWM Termination Fee, as the case may be, commencing on the date that the ICLK Termination Fee or DWM Termination Fee, as the case may be, became due until the date such amount is actually received by the applicable Party, at the prime rate as published in The Wall Street Journal on such date plus 1.00% or a lesser rate that is the maximum permitted by applicable Law. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder. (d) Subject to ‎Section 11.6, ICLK’s right to (i) terminate this Agreement and receive the DWM Termination Fee pursuant to ‎Section 9.3(b), and (ii) if applicable, receive reimbursement and interest pursuant to Section 9.3(c) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any ICLK Party against (A) DWM or the DWM Group Companies, (B) the former, current and future direct or indirect holders of any equity, general or limited partnership or liability company interest, controlling persons, management companies, portfolio companies, incorporators, Representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of DWM or DWM Group Company, or (C) any former, current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interest, controlling persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, Representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of any of the foregoing (clauses ‎(A) through ‎(C), collectively, the “DWM Group”), for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement under this Agreement or any certificate or other document delivered in connection herewith or failure to perform hereunder or other failure of the Merger or the other Transactions to be consummated. For the avoidance of doubt, neither DWM nor any other member of the DWM Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions other than the payment of the DWM Termination Fee pursuant to ‎Section 9.3(b) and the reimbursement and interest pursuant to Section 9.3(c), and in no event shall (I) any ICLK Group Company, (II) the former, current and future direct or indirect holders of any equity, general or limited partnership or liability company interest, controlling persons, management companies, portfolio companies, incorporators, Representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of any ICLK Group Company, or (C) any former, current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interest, controlling persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, Representatives, Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of any of the foregoing (clauses ‎(I) through ‎(III), collectively, the “ICLK Group”), seek, or permit to be sought, on behalf of any member of the ICLK Group, any monetary damages from any member of the DWM Group in connection with this Agreement (or any certificate or other document delivered in connection herewith) or any of the Transactions, other than (without duplication) from (A) DWM to the extent provided in ‎Section 9.3(b) and ‎Section 9.3(c). This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each Consenting Convertible Note Holder member of the DWM Group. (e) Subject to ‎Section 11.6, DWM’s right to terminate this Agreement and receive the ICLK Termination Fee pursuant to ‎Section 9.3(a) and reimbursement and interest under Section 9.3(c) shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any member of the DWM Group against any member of the ICLK Group for any loss or damage suffered as a result of any breach of any representation, warranty, covenant or agreement under this Agreement or any certificate or other document delivered in connection herewith or failure to perform hereunder or other failure of the Merger to be consummated. Neither ICLK nor any member of the ICLK Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection with this Agreement or any of the Transactions other than the payment by ICLK of the ICLK Termination Fee pursuant to ‎Section 9.3(a) and the reimbursement and interest under Section 9.3(c), and in no event shall DWM or any other member of the DWM Group seek, or permit to be sought, on behalf of any member of the DWM Group, any monetary damages from any member of the ICLK Group in connection with this Agreement (or any certificate or other document delivered in connection herewith) or any of the Transactions, other than (without duplication) from ICLK to the extent provided in ‎Section 9.3(a) and ‎Section 9.3(c). This provision was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the ICLK Group. (f) Each of the Parties acknowledges that (i) the agreements contained in this Section 10.3 ‎Section 9.3 are an integral part of the transactions contemplated by Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a ICLK Termination Fee or DWM Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to ‎Section 9.3(a) or ‎Section 9.3(b) are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount that will compensate DWM or the ICLK, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and thatin reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without these agreementsthe agreements contained in this ‎Section 9.3, PJC the Parties hereto would not enter have entered into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything to the contrary in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in Agreement: (i) In the event that this Agreement has been validly is terminated (i) by PJC Seller pursuant to (A) Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e14(a)(v) (unless in the case of Section 10.1(e), PJC’s material with respect to a breach was the basis for such terminationor failure to perform by PropCo Purchaser) or (iiiB) Section 14(a)(viii) then, PropCo Purchaser shall pay, or cause to be paid, to Seller by PJC or Emergent pursuant wire transfer of immediately available funds a fee in an amount equal to Section 10.1(b) or Section 10.1(g) and, in $150,000,000 (the case of this clause (iii“PropCo Financing Termination Fee”), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination. (ii) In the event that (A) this Agreement is terminated by Seller or the Purchasers (x) pursuant to Section 14(a)(ii) and at the time of such termination the condition set forth in Section 12(a)(iii)(2) has not been satisfied or (y) pursuant to Section 14(a)(iii) in respect of an Order, then Law or other action relating to the matters set forth in Section 12(a)(iii)(2); (B) at the time of such termination, all of the conditions to Closing set forth in Sections 12(a) and 12(b) hereof (including Sections 12(a)(iii)(1) and 12(a)(iii)(3)) and Sections 9(a) and 9(b) of the Real Estate Purchase Agreement have been satisfied (other than (I) the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or the condition set forth in Section 12(a)(iii)(2), (II) the condition set forth in Section 9(a) of the Real Estate Purchase Agreement solely with respect to Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or Section 12(a)(iii)(2) and (III) those conditions, which by their nature, are to be satisfied on the Closing Date but which are capable of being satisfied assuming the Closing were to occur on the date of termination); and (C) (x) there has been no willful and intentional action by Seller or any of its Affiliates with respect to the matters set forth in Section 12(a)(iii)(2), or (y) no limitation or suspension of, or failure of Seller and its Affiliates to hold, any Gaming License required to conduct operations at the Premises has occurred since the date of this Agreement that, in each case (clauses (x) and (y)), has caused the failure of any of the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or Section 12(a)(iii)(2) or Section 9(a) of the Real Estate Purchase Agreement (solely with respect to Sections 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or Section 12(a)(iii)(2)) to be satisfied, then, OpCo Purchaser shall pay, or cause to be paid, to Seller by wire transfer of immediately available funds a fee in an amount equal to $150,000,000 (the “OpCo Regulatory Termination Fee”), within two (2) Business Days following of the expiration date of such sixty termination. (60iii) day periodIn the event that (A) this Agreement is terminated by Seller or the Purchasers (x) pursuant to Section 14(a)(ii) and at the time of such termination the condition set forth in Section 12(a)(iii)(3) has not been satisfied or (y) pursuant to Section 14(a)(iii) in respect of an Order, PJC Law or other action relating to the matters set forth in Section 12(a)(iii)(3); (B) at the time of such termination, all of the conditions to Closing set forth in Sections 12(a) and 12(b) hereof (including Sections 12(a)(iii)(1) and 12(a)(iii)(2)) and Sections 9(a) and 9(b) of the Real Estate Purchase Agreement have been satisfied (other than (I) the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or the condition set forth in Section 12(a)(iii)(3), (II) the condition set forth in Section 9(a) of the Real Estate Purchase Agreement solely with respect to Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or Section 12(a)(iii)(3) and (III) those conditions, which by their nature, are to be satisfied on the Closing Date but which are capable of being satisfied assuming the Closing were to occur on the date of termination); and (C) (x) there has been no willful and intentional action by Seller or any of its Affiliates with respect to the matters set forth in Section 12(a)(iii)(3), or (y) no limitation or suspension of, or failure of Seller and its Affiliates to hold, any Gaming License required to conduct operations at the Premises has occurred since the date of this Agreement that, in each case (clauses (x) and (y)), that has caused the failure of any of the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or Section 12(a)(iii)(3) or Section 9(a)(i) of the Real Estate Purchase Agreement (solely with respect to Sections 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or Section 12(a)(iii)(3)) to be satisfied, then, PropCo Purchaser shall pay pay, or cause to be paid paid, to Emergent the amount Seller by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available fundsfunds a fee in an amount equal to $150,000,000 (the “PropCo Regulatory Termination Fee”), payable as instructed by Emergentwithin two (2) Business Days of the date of such termination. (biv) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder Each party acknowledges that the agreements contained in provisions of this Section 10.3 14(c) are an integral part of the transactions contemplated by this Agreement and the Real Estate Purchase Agreement and that, without these agreements, PJC Seller, on one hand, and the Purchasers, on the other hand, would not enter into this Agreement or the Real Estate Purchase Agreement. Accordingly, if Emergent If PropCo Purchaser or OpCo Purchaser fails to promptly pay any amounts the amount due by it pursuant to this Section 10.314(c), andinterest shall accrue on such amount on a daily basis from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made, plus five percent (5%). If, in order to obtain such payment, PJC and/or Triax Seller commences a Legal Proceeding an Action that results in a judgment against Emergent for Seller for the amounts set forth in this Section 10.3payment of such amount, Emergent PropCo Purchaser or OpCo Purchaser, as applicable, shall pay to PJC and Triax their Seller its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Legal ProceedingAction (such expenses and interest, together with interest collectively, “Enforcement Costs”); provided, however, that in all circumstances the maximum aggregate amount of the Enforcement Costs shall be $3,000,000 for each Purchaser. In no event shall either Purchaser be obligated to pay more than one Termination Fee, or a Termination Fee on more than one occasion; and in no event shall (w) OpCo Purchaser be responsible for or pay the PropCo Financing Termination Fee or the PropCo Regulatory Termination Fee, (x) PropCo Purchaser be responsible for or pay the OpCo Regulatory Termination Fee, (y) PropCo Purchaser be obligated to pay the PropCo Regulatory Termination Fee if OpCo Purchaser is obligated to pay the OpCo Regulatory Termination Fee and (z) OpCo Purchaser be obligated to pay the OpCo Regulatory Termination Fee if PropCo Purchaser is obligated to pay the PropCo Regulatory Termination Fee. The parties acknowledge that none of the PropCo Financing Termination Fee payable pursuant to Section 14(c)(i), the OpCo Regulatory Termination Fee payable pursuant to Section 14(c)(ii) or the PropCo Regulatory Termination Fee payable pursuant to Section 14(c)(iii) is a penalty, but are liquidated damages, and the damages resulting from termination of this Agreement under circumstances in which the PropCo Financing Termination Fee, the OpCo Regulatory Termination Fee or the PropCo Regulatory Termination Fee is payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Sections 14(c)(i), 14(c)(ii) or 14(c)(iii) or this Section 14(c)(iv), as applicable, are reasonable forecasts of the actual damages that compensate the Seller and the Seller Related Parties for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and the Real Estate Purchase Agreement and in reliance upon this Agreement and the Real Estate Purchase Agreement and on the amounts due pursuant to this Section 10.3 from expectation of the date consummation of the transactions contemplated herein and therein, and for the loss suffered by reason of the failure of such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumconsummation. (dv) Simultaneously Notwithstanding anything to the contrary set forth in this Agreement, in any circumstance in which this Agreement is terminated and the PropCo Financing Termination Fee is payable pursuant to Section 14(c)(i) or the PropCo Regulatory Termination Fee is payable pursuant to Section 14(c)(iii), the PropCo Financing Termination Fee or the PropCo Regulatory Termination Fee, as applicable, shall constitute the sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) of Seller and its Subsidiaries and each of their respective Seller Releasing Parties against PropCo Purchaser or any PropCo Purchaser Released Party for any breach, loss or damage with respect to this Agreement, the execution Real Estate Purchase Agreement or any Ancillary Agreement or for the failure of the transactions contemplated hereby or thereby to be consummated, and delivery upon payment of the PropCo Financing Termination Fee or the PropCo Regulatory Termination Fee, as applicable, none of PropCo Purchaser or any of the PropCo Purchaser Released Parties shall have any further liability or obligation relating to or arising out of this Agreement, Emergent the Real Estate Purchase Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby (including any liability for or damages arising out of (i) the willful and material breach by PropCo Purchaser of any provision of this Agreement prior to the valid termination of this Agreement or (ii) fraud with respect to any provision of this Agreement prior to the valid termination of this Agreement), except that PropCo Purchaser shall cause Lamington Road also be obligated to execute Seller for any Enforcement Costs and deliver to PJC a written undertaking in form and substance satisfactory to PJC any interest payable pursuant to which Lamington Road Section 14(c)(iv); provided, that, nothing in this Section 14(c) shall be legally obligated limit the ability of the Seller to pay any amounts due recover reimbursement for costs and expenses and indemnification under Section 5(g)(ii)(4) (Financial Statements and Reports) or Section 5(i)(iii) (Financing Cooperation); provided, further, that, subject to PJC Sections 14(d)(ii) and 14(d)(iv), nothing in this Section 14(c) shall restrict the right of Seller to an injunction, specific performance or other equitable relief in accordance with Section 14(d) prior to the termination of this Agreement. (vi) Notwithstanding anything to the contrary set forth in this Agreement, in any circumstance in which this Agreement is terminated and the OpCo Regulatory Termination Fee is payable pursuant to Section 14(c)(ii), the OpCo Regulatory Termination Fee shall constitute the sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) of Seller and its Subsidiaries and each of their respective Seller Releasing Parties against OpCo Purchaser or any OpCo Purchaser Released Party for any breach, loss or damage with respect to this Agreement, the Real Estate Purchase Agreement or any Ancillary Agreement or for the failure of the transactions contemplated hereby or thereby to be consummated, and upon payment of the OpCo Regulatory Termination Fee, none of OpCo Purchaser or any of the OpCo Purchaser Released Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Real Estate Purchase Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby (including any liability for or damages arising out of (i) the willful and material breach by OpCo Purchaser of any provision of this Agreement prior to the valid termination of this Agreement or (ii) fraud with respect to any provision of this Agreement prior to the valid termination of this Agreement), except that OpCo Purchaser shall also be obligated to Seller for any Enforcement Costs and any interest payable pursuant to Section 14(c)(iv); provided, that, nothing in this Section 10.314(c) shall limit the ability of the Seller to recover reimbursement for costs and expenses and indemnification under Section 5(i)(v) (Financing Cooperation); provided, further, that, subject to Sections 14(d)(ii) and 14(d)(iv), nothing in this Section 14(c) shall restrict the right of Seller to an injunction, specific performance or other equitable relief in accordance with Section 14(d) prior to the termination of this Agreement.

Termination Fee. (a) Notwithstanding anything in this Agreement to In the contrary, and without limiting any other provision event that (i) a Pre-Termination Takeover Proposal Event (as hereinafter defined) shall have occurred after the date of this Agreement and thereafter this Agreement is terminated by either State Street or any other Transaction DocumentInvestors Financial pursuant to Section 8.1(c) or 8.1(f), in and (ii) prior to the date that is twelve (12) months after the date of such termination Investors Financial consummates or enters into a definitive agreement with respect to an Alternative Transaction, Investors Financial shall, on the earlier of the date of such entry into a definitive agreement with respect to, or consummation of, an Alternative Transaction, pay State Street a fee equal to $165,000,000 by wire transfer of same day funds. (b) In the event that this Agreement has been validly is terminated (i) by PJC State Street pursuant to Section 10.1(d) or Section 10.2(f8.1(e), (ii) then Investors Financial shall pay State Street a fee equal to $165,000,000 by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority wire transfer of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then same day funds within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) business days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (bc) Notwithstanding anything For purposes of this Section 8.4, a “Pre-Termination Takeover Proposal Event” shall be deemed to occur if, prior to the event giving rise to the right to terminate this Agreement, a bona fide Alternative Proposal shall have been made known to Investors Financial or any of its Subsidiaries or has been made directly to its stockholders generally or any person shall have publicly announced an intention (whether or not conditional) to make a Alternative Proposal (the term Alternative Transaction, as used in the definition of Alternative Proposal for purposes of this Section 8.4, and as used in this Agreement Section 8.4, shall have the same meaning set forth in Section 6.11 except that the references to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment “more than 25%” and “at least 75%” shall be deemed to be liquidated damagesreferences to “50% or more” and “a majority,” respectively); (d) Notwithstanding anything to the contrary herein, and the maximum aggregate amount of fees payable under this Section 8.4 shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment$165,000,000. (ce) Emergent and each Consenting Convertible Note Holder Investors Financial acknowledges that the agreements contained in this Section 10.3 8.4 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC State Street would not enter into this Agreement. Accordingly; accordingly, if Emergent Investors Financial fails promptly to pay any amounts the amount due pursuant to this Section 10.38.4, and, in order to obtain such payment, PJC and/or Triax State Street commences a Legal Proceeding that suit which results in a judgment against Emergent Investors Financial for the amounts fee set forth in this Section 10.38.4, Emergent Investors Financial shall pay to PJC and Triax their State Street its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumsuit. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in If this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly is terminated (i) by PJC CP&L and Holdco pursuant to Section 10.1(d7.1(b) or Section 10.2(f)hereof, and there shall have been an Alternative Proposal that at -------------- such time shall not have been (y) rejected by FPC and its Board of Directors and (z) withdrawn by the party making such Alternative Proposal; (ii) by Convertible Note Holders, including FPC or CP&L and Holdco pursuant to the Consenting Convertible Note Holders, that, first sentence of Section 7.1 hereof because the FPC ----------- shareholder approval specified in Section 6.1(a) is not obtained at the aggregate, hold a majority meeting -------------- called therefor or at any adjournment thereof; provided that at the time of the aggregate principal amount -------- FPC Special Meeting there shall have been an Alternative Proposal that at such time shall not have been (y) rejected by FPC and its Board of Directors and (z) withdrawn by the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for party making such termination) or Alternative Proposal; (iii) by PJC or Emergent CP&L and Holdco pursuant to Section 10.1(b7.1(d)(ii) or and the breach by FPC giving rise to such ------------------ right of termination was a breach of Section 10.1(g5.3 hereof (except for a breach ----------- that was both inadvertent and was cured as promptly as commercially practicable after FPC became aware of such breach); (iv) and, in the case of this by CP&L and Holdco pursuant to clause (iii) of Section 7.1(d), within sixty ; or (60v) days of such termination Emergent enters into any agreement with respect by FPC pursuant to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s AffiliatesSection -------------- ------- 7.1(e) hereof, then FPC shall promptly (and in any event within two (2) Business Days following such days of ------ receipt by FPC of written notice from Holdco) pay to Holdco (by wire transfer of immediately available funds to an account designated by Holdco) a termination fee of $150,000,000.00, together with an amount equal to all documented out-of- pocket expenses and fees (including, without limitation, fees and expenses payable to all legal, accounting, financial, public relations and other professional advisors arising out of, in connection with or related to the Exchange or the other transactions contemplated by this Agreement) not to exceed $25,000,000.00 in the case of aggregate ("Out-of-Pocket Expenses") incurred by CP&L and Holdco or on their behalf. (b) If this Agreement is terminated (i) by FPC pursuant to Section ------- 7.1(c), or (ii) by CP&L and Holdco pursuant to either clause (i) or clause (ii)) or entry into of ------ Section 7.1(d) and the breach by FPC giving rise to such an agreement or consummation right of such Alternative Proposal termination -------------- was not a breach described in Section 7.3(a)(iii) hereof, then, (in the case of clause (iii)y) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that ------------------- of a termination pursuant to Section 7.1(d)(i) or Section 7.1(d)(ii), FPC shall ----------------- ------------------ promptly (but not later than five (5) business days after notice of termination) pay to CP&L or Holdco their Out-of-Pocket Expenses or (x) this Agreement has been validly terminated by Emergent in the event of a termination pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination7.1(c), then within two CP&L and Holdco shall promptly (2but -------------- not later than five (5) Business Days following the expiration business days after notice of such sixty (60termination) day periodpay to FPC its Out-of-Pocket Expenses; provided that in either case, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in if this Agreement to the contrary, if PJC, Triax or Emergent receives is -------- terminated as a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any result of a willful breach of the a representation, warranty, covenant, obligation covenant or agreement hereunder that was by the basis of other party, the termination of this Agreement that resulted non-breaching party may pursue any remedies available to it at law or in the making of such payment.equity and shall be entitled to recover any additional amounts pursuant thereto. 100 (c) Emergent and each Consenting Convertible Note Holder acknowledges The parties agree that the agreements contained in this Section 10.3 ------- 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would --- constitute liquidated damages and not enter into this Agreementa penalty. Accordingly, if Emergent If one party fails to promptly pay to the other any amounts fees due pursuant to this Section 10.3hereunder, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent defaulting party shall pay to PJC and Triax their the costs and expenses (including reasonable attorneys’ legal fees and expenses) in connection with such Legal Proceedingany action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amounts due pursuant amount of any unpaid fee at the publicly announced prime rate of Citibank, N.A. in effect from time to this Section 10.3 time from the date such payment fee was required to be made until the date of payment at the rate of ten percent (10%) per annumpaid. (d) Simultaneously with This Section 7.3 shall be the execution and delivery sole remedy of the parties hereto in ----------- the event of any termination of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. Notwithstanding anything to the contrary set forth in this Agreement: (a) Notwithstanding anything in this Agreement OUTD shall pay a fee to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, Parent in the event that this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.001,000,000) in immediately available funds(such amount, payable as instructed by PJC and Triax. In addition to the foregoing“Termination Fee”), and notwithstanding anything in if: (i) OUTD terminates this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b8.1(e); (ii) and Parent terminates this Agreement pursuant to Section 8.1(f); or (yiii) Emergent has not entered into (A) OUTD or Parent terminates this Agreement pursuant to Section 8.1(b)(iii), (B) at the time of such termination (or, if applicable the OUTD Stockholders’ Meeting) an Alternative Proposal shall have been proposed to OUTD or the OUTD Board or publicly announced and (C) within sixty (60) days of 12 months following the date of such termination, then OUTD shall have entered into a definitive agreement with respect to an Alternative Proposal (and such transaction is subsequently consummated) or an Alternative Proposal shall have been consummated; provided, however, that for purposes of clause (C) of this Section 8.3(a)(iii), the references to “25%” in the definition of Alternative Proposal shall be deemed to be references to “50%”. (b) OUTD shall pay the Termination Fee by wire transfer of immediately available funds (i) at or concurrently with the termination of this Agreement as set forth in Section 6.1(d) in the case of Section 8.3(a)(i), (ii) within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making case of Section 8.3(a)(ii) and (iii) within two Business Days of the event giving rise to the payment of the Termination Fee in the case of Section 8.3(a)(iii). For the avoidance of doubt, any payment to be made by OUTD under this Section 8.3 shall be payable only once to Parent with respect to this Section 8.3 and not in duplication even though such paymentpayment may be payable under one or more provisions hereof. (c) Emergent The parties acknowledge and each Consenting Convertible Note Holder acknowledges agree that the agreements contained in this Section 10.3 8.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC the parties would not enter into this Agreement. Accordingly, if Emergent If OUTD fails to promptly pay any amounts the amount due by it pursuant to this Section 10.38.3, andinterest shall accrue on such amount at the prime lending rate prevailing at such time as published in the Wall Street Journal from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment. If, in order to obtain such payment, PJC and/or Triax Parent commences a Legal Proceeding suit that results in a judgment against Emergent for the amounts set forth in this Section 10.3Parent for such amount, Emergent OUTD shall pay to PJC and Triax their Parent its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Legal Proceedingsuit. Each of the parties further acknowledges that the payment of the Termination Fee by OUTD is not a penalty, together with interest but is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such fees or expenses are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the amounts due pursuant expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumcalculate with precision. (d) Simultaneously with the execution The parties further acknowledge and delivery agree that in no event shall any former, current or future direct or indirect equity holders, controlling Persons, representatives, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees of OUTD or Parent (collectively, “Non-Recourse Parties”) have any other liability relating to or arising out of this Agreement, Emergent the Transaction Documents or the transactions contemplated hereby or thereby, and no party hereto, its Subsidiaries or any of their Affiliates shall seek (and such party shall cause Lamington Road its controlled Affiliates not to execute seek) any monetary damages or any other recovery, judgment, or damages of any kind against any of the Non-Recourse Parties, and deliver to PJC a written undertaking in form such party, its Subsidiaries and substance satisfactory to PJC pursuant to which Lamington Road their Affiliates shall be legally obligated to pay precluded from any amounts due to PJC remedy against any of the Non-Recourse Parties at law or in accordance with this Section 10.3equity or otherwise.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly terminated that: (i) this Agreement is terminated by PJC Acquiror pursuant to Section 10.1(d8.1(b), Section 8.1(e), Section 8.1(g), Section 8.1(h) or Section 10.2(f8.1(i); (ii) this Agreement is terminated by the Company pursuant to Section 8.1(e); or (iii) any Company Group Member rejects this Agreement in any bankruptcy, insolvency, reorganization or similar Proceeding; then, in any such event under clause (i), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iiiSection 8.3(a), within sixty the Company shall pay to Acquiror a nonrefundable termination fee of $50,000,000 (60the “Termination Fee”). Any payment of the Termination Fee required to be made pursuant to: (1) days of such termination Emergent enters into any agreement with respect Section 8.3(a)(i) shall be made to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then Acquiror within two (2) Business Days following after termination of this Agreement by Acquiror as set forth in Section 8.3(a)(i); (2) Section 8.3(a)(ii) shall be made to Acquiror immediately prior to and as a condition to such termination of this Agreement by the Company as set forth in Section 8.3(a)(ii); and (3) Section 8.3(a)(ii) shall be made to Acquiror (except as otherwise required by applicable Law or the relevant Governmental Entity) immediately upon rejection of this Agreement in the Proceeding described in Section 8.3(a)(ii). All payments under this Section 8.3(a) shall be made by wire transfer of immediately available funds to an account to be designated by Acquiror. Except in the case of clause (i) Fraud or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction DocumentWillful Breach, in the event that (x) this Agreement has been validly terminated by Emergent Acquiror receives full payment pursuant to this Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days 8.3(a), then, receipt of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment Termination Fee shall be deemed to be liquidated damagesdamages for any and all losses or damages suffered or incurred by Acquiror, Merger Sub, any of their respective Affiliates or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of Acquiror, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any claim, action or proceeding against the Company Group or any of its sole Affiliates for damages or any equitable relief arising out of or in connection with this Agreement, any of the Transactions or any matters forming the basis for such termination. Notwithstanding the foregoing, nothing in this Section 8.3(a) shall prevent, limit or otherwise restrict the right of Acquiror, Merger Sub or any of their respective Affiliates to bring or maintain any claims arising out of any Company Group Member’s Fraud or Willful Breach and exclusive remedy, with respect any Termination Fee paid to Acquiror hereunder will be offset against any award for damages given to Acquiror pursuant to any breach of the representation, warranty, covenant, obligation claim for Fraud or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such paymentWillful Breach. (cb) Emergent The Company and each Consenting Convertible Note Holder acknowledges Acquiror acknowledge that the agreements contained in this Section 10.3 8.3(a) are an integral part of the transactions contemplated by this Agreement Transactions, and that, without these those agreements, PJC the Company, Acquiror and Merger Sub would not enter into this Agreement. Accordingly, if Emergent the Company fails to pay make payment of any amounts due pursuant to this amount payable under Section 10.38.3(a) within the time period specified in Section 8.3(a), andas the case may be, in order to obtain such payment, PJC and/or Triax and Acquiror commences a Legal Proceeding to collect such amount that results in a judgment against Emergent the Company Group, the Company Group shall reimburse Acquiror for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs its fees and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Legal Proceeding, together with Proceeding and shall pay interest on the amounts due amount of the payment at the prime rate as published in The Wall Street Journal in effect on the date the amount was payable pursuant to this Section 10.3 from 8.3(a), with such interest to accrue beginning on the date such payment amount first was required payable pursuant to be made until Section 8.3(a), to the date of payment at the rate of ten percent (10%) per annumpayment. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.”

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated If (i) this Agreement is terminated (A) by PJC Acquiror or the Company pursuant to Section 10.1(d8.1(d) (End Date) if, at the time of such termination, all of the conditions set forth in Section 2.2, other than the conditions set forth in (x) Section 2.2(a)(iv)(B), or Section 10.2(f2.2(a)(iv)(C), (iiy) Section 2.2(a)(v) (to the extent such Law or Order preventing the consummation of the Merger is, or is issued by CFIUS or another Governmental Entity in respect of, the DPA or any similar Law), or (z) Section 2.2(a)(vi) (to the extent relating to the matters referenced in the foregoing clauses (x) or (y), and those conditions that by their nature are to be satisfied on the Closing Date (if such conditions would be satisfied or validly waived were the Closing Date to occur at such time), shall have been satisfied or waived, (B) by Convertible Note Holders, including Acquiror or the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Company pursuant to Section 10.1(c8.1(e) (Prohibition by Governmental Law or Order) (to the extent such Law or Order preventing the consummation of the Merger is, or is issued by CFIUS or another Governmental Entity in respect of, the DPA or any similar Law), (C) by Acquiror or the Company pursuant to Section 10.1(e8.1(h) (unless in the case of Section 10.1(eCFIUS Turndown or DSS Turndown), PJC’s material breach was the basis for such termination) or (iiiD) by PJC Acquiror or Emergent the Company pursuant to Section 10.1(b8.1(i) (Acquiror Rejected CFIUS Condition or Section 10.1(g) and, in the case of this clause (iiiAcquirer Rejected DSS Condition), within sixty and (60ii) days at the time of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliatesthere is no Company Breach, then within Acquiror shall, no later than the date that is two (2) Business Days following after such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay termination, pay, or cause to be paid paid, to PJC the Company, by wire transfer of immediately available funds to an account designated by the Company in writing, an amount in cash equal to $3,510,000 (the “Termination Fee”). The parties hereby acknowledge and Triax the aggregate amount of One Million Five Hundred Thousand Dollars agree that ($1,500,000.00i) in immediately available fundsno event shall Acquiror be required to pay the Termination Fee on more than one occasion, whether or not the Termination Fee may be payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other under more than one provision of this Agreement at the same or any other Transaction Documentat different times, in or as a result of the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) occurrence of different events and (yii) Emergent has not entered into an Alternative Proposal within sixty (60) days payment of any Extension Fee shall in no way relieve the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall Acquiror from its obligation to pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, any Termination Fee payable as instructed by Emergenthereunder. (b) Notwithstanding anything to the contrary in this Agreement Agreement, but subject to Section 8.3, in the event Acquiror pays the Termination Fee to the contrary, Company (even if PJC, Triax or Emergent receives a any element requiring payment under Section 10.3(athereof is waived), such payment none of Acquiror or any of the Indemnified Parties, or any of their respective successors or assigns (collectively, the “Acquiror Related Parties”) will have any further liability or obligation to the Company or any of the other Company Related Parties or any other Person under, arising out of, relating to, or in connection with this Agreement or the transactions contemplated hereby (except that Acquiror shall be deemed continue to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach bound by the Non-Disclosure Agreement). Each of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder parties hereto acknowledges that (i) the agreements contained in this Section 10.3 8.2 are an integral part of the transactions contemplated by this Agreement, (ii) the Termination Fee is not a penalty, but liquidated damages, in a reasonable amount that will compensate the Company and its Affiliates, including its Subsidiaries, the Securityholders, and each Representative of the foregoing (collectively, the “Company Related Parties”) in the circumstances in which the Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and thatendeavoring to consummate the transactions contemplated hereby, and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision, (iii) subject to Section 8.3, in the event Acquiror pays the Termination Fee to the Company (even if any element requiring payment thereof is waived), none of the Company or any of the other Company Related Parties or any other Person shall (x) assert any claim or seek to obtain any recovery, judgment, or relief (whether in law or in equity, including specific performance) against Acquiror or any of the other Acquiror Related Parties or any of their respective assets, or (y) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, special or punitive damages, in any case, under, arising out of, relating to, or in connection with this Agreement or the transactions contemplated hereby, and (iv) without these agreements, PJC the parties would not enter have entered into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (ai) Notwithstanding anything in If the Company terminates this Agreement pursuant to Section 7.1(a)(iii) or if the Parent terminates this Agreement pursuant to Section 7.1(a)(ii) or 7.1(a)(iv), prior to and as a condition to the contraryeffectiveness of such termination, the Company shall pay to Parent a termination fee of $30 million (the “Termination Fee”). (ii) If (A) an Acquisition Proposal shall have been made to the Company or directly to its stockholders or shall have otherwise become publicly known or announced (whether or not conditional) and without limiting (B) the Agreement is thereafter terminated (I) by Parent pursuant to Section 7.1(a)(i)(A), or (II) by the Parent or the Company pursuant to Section 7.1(a)(i)(B), or (III) by the Company or the Parent pursuant to Section 7.1(a)(i)(C) and (C) concurrently or within twelve (12) months after such termination, the Company enters into a definitive Contract to consummate or consummates transactions contemplated by any other provision Acquisition Proposal (regardless of whether made before or after termination of this Agreement Agreement), then the Company shall pay Parent the Termination Fee by wire transfer of same-day funds on the earlier of the date the Company enters into such Contract or any other consummates such Takeover Proposal. For purposes of this Section 7.2(b)(ii), all references to “twenty percent (20%)” in the definitive of Acquisition Transaction Document, in shall be deemed to refer to fifty percent (50%). (iii) If the event that (A) the Company terminates this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d7.1(a)(i)(B) and (B) at the time of such termination all conditions to the consummation of the Offer are satisfied or Section 10.2(fwaived except for the conditions set forth in Paragraphs (b), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(cc) or pursuant to Section 10.1(e(d) of Annex I and (unless C)(I) in the case of Section 10.1(e), PJCsuch Paragraph (b) the reason any waiting period has not expired relates solely to the Company’s material breach was the basis for such termination) EVH Business or (iiiII) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of Paragraphs (c) or (d) the suit, action, proceeding statute, rule, regulation, judgment, order or injunction is related solely to the Company’s EVH Business, the Parent shall pay to the Company a termination fee of $30,000,000 (the “HSR Termination Fee”) provided, however, the Company shall not be entitled to the HSR Termination Fee if, prior to or at the time of the termination, Parent is entitled to terminate this clause Agreement for any reason (iii), within sixty (60excluding any cure or notice provisions) days or the Company is in breach of such termination Emergent enters into any agreement its obligations set forth in Section 5.6 with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by EmergentHSR Act. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in If Purchaser terminates this Agreement pursuant to Section 8.1(c)(ii) or the contrary, and without limiting any other provision of Company terminates this Agreement pursuant to Section 8.1(d)(ii), then the Company shall pay to Parent (or any other Transaction Document, in the event that this Agreement has been validly terminated its designee) a termination fee of $2,159,725. (b) If (i) by PJC Purchaser terminates this Agreement pursuant to Section 10.1(d8.1(c)(i) or Purchaser or the Company terminates this Agreement pursuant to Section 10.2(f8.1(b)(iii), (ii) by Convertible Note Holdersprior to the date of such termination (but after the date hereof) an Acquisition Proposal is publicly announced or is otherwise communicated to the Company’s Board of Directors, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or and (iii) by PJC or Emergent pursuant to Section 10.1(bwithin twelve (12) or Section 10.1(g) and, in months after the case of this clause (iii), within sixty (60) days date of such termination Emergent termination, the Company enters into any a definitive agreement with respect to or otherwise consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliatesany Acquisition Proposal, then within the Company shall pay to Parent (or its designee) a termination fee of $2,159,725 no later than two (2) Business Days following after the execution of such termination (in the case of clause (i) or clause (ii)) or entry into such an definitive agreement or consummation of such Alternative Proposal (in Acquisition Proposal, as the case may be; provided, that solely for purposes of clause this Section 8.3(b), the term Acquisition Proposal shall have the meaning ascribed thereto in Section 6.2(d)(i), except that all references to twenty percent (iii20%) shall be changed to fifty percent (50%). (c) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in If Purchaser terminates this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b8.1(c)(i) and or Purchaser or the Company terminates this Agreement pursuant to Section 8.1(b)(iii), then the Company shall reimburse Parent (yor its designee) Emergent has not entered into an Alternative Proposal within sixty (60) days for any Expenses incurred by or on behalf of the date Purchaser Entities or any of such terminationtheir Affiliates, then within in an aggregate amount not to exceed $500,000 (“Expense Reimbursement”), no later than two (2) Business Days following after the expiration date of such sixty termination. (60d) day periodThe parties agree and understand that in no event shall the Company be required to pay any termination fee pursuant to this Section 8.3 (any such amount, PJC the “Termination Fee”) on more than one occasion. Notwithstanding anything to the contrary in this Agreement, (i) if Parent (or its designee) receives the Termination Fee and/or Expense Reimbursement from the Company pursuant to this Section 8.3, such payment(s) shall pay be the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and their respective former, current or cause future officers, directors, partners, shareholders, managers, members, Affiliates and Representatives, and none of the Company, any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members, Affiliates or Representatives shall have any further liability or obligation relating to be paid or arising out of the Transaction Agreements or the Transactions and, (ii) if Parent (or its designee) receives any Expense Reimbursement, and thereafter Parent (or its designee) is entitled to Emergent receive the Termination Fee under this Section 8.3, the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment Termination Fee shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of reduced by the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making aggregate amount of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges Expense Reimbursement. The parties acknowledge that the agreements contained in this Section 10.3 8.3 are an integral part of the transactions contemplated by this Agreement Transactions, and that, without these agreements, PJC the parties would not enter into this Agreement. Accordinglythe Transaction Agreements, if Emergent fails to pay and that any amounts due payable pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences 8.3 do not constitute a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumpenalty. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything to the contrary in this Agreement to the contraryAgreement, and without limiting any other provision of this Agreement or any other Transaction Documentincluding Section 10.1 above, in the event that this Agreement has been validly terminated if: (i) by PJC (x) Green terminates this Agreement pursuant to Section 10.1(d9.1(d) or (y) Blue terminates this Agreement pursuant to Section 9.1(h), then, in each case, Blue shall pay to Green in same-day funds promptly upon delivery of the written notice of termination required by Section 9.1 an amount in cash equal to $75,000,000 (the “Termination Fee”); or (ii) either Blue or Green terminates this Agreement pursuant to Section 9.1(b) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e9.1(c) (unless in the case of Section 10.1(e)each case, PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that only if both (x) this Agreement has been validly terminated by Emergent pursuant the condition set forth in Section 8.1(e)(i) was satisfied and remained satisfied to Section 10.1(b) provide Blue with adequate time to hold a Shareholder Meeting prior to such termination and (y) Emergent the Shareholder Approval has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(abeen obtained), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation Section 9.1(f) or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.39.1(g), and, in order any case, (A) prior to obtain such paymenttermination, PJC and/or Triax commences there has been an Acquisition Proposal, which Acquisition Proposal has not been publicly withdrawn at least ten (10) Business Days before the date of the Shareholder Meeting, and (B) within twelve (12) months of such termination Blue shall have consummated or entered into a Legal Proceeding that results definitive agreement to effect a transaction pursuant to an Acquisition Proposal (substituting, in a judgment against Emergent each of (A) and (B), “50%” for “15%” in the amounts set forth definition of “Acquisition Proposal” and “Blue or any of its Significant Subsidiaries” for “Blue” in this Section 10.3clauses (B), Emergent (C) and (D) of the definition of “Acquisition Proposal”), then Blue shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal ProceedingGreen the Termination Fee. Notwithstanding the foregoing, together with interest on the amounts due any Expenses previously paid by Blue to Green pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road 10.2 shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3credited toward, and offset against, the payment of the Termination Fee.

Termination Fee. (a) Notwithstanding anything any provision in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated if (i) this Agreement is terminated by PJC the Company or Newco pursuant to Section 10.1(d) or Section 10.2(f7.01(e), (ii) this Agreement is terminated by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Newco pursuant to Section 10.1(c7.01(f), or (iii) (w) prior to the termination of this Agreement, a bona fide Takeover Proposal is commenced, publicly proposed or publicly disclosed and not withdrawn, and (x) this Agreement is terminated by the Company pursuant to Section 10.1(e7.01(b) or 7.01(d) (unless but only due to the failure of the Company stockholders to approve the Merger) or by Newco pursuant to Section 7.01(g), and (y) concurrently with or within 120 days after such termination a Takeover Proposal shall have been consummated, then, in each case, the Company shall pay to Newco a termination fee of $6.5 million in cash, plus its reasonable out of pocket expenses incurred in connection with this Agreement and the transactions contemplated hereby ("Termination Fee"), such payment to be made simultaneously with such termination in the case of Section 10.1(e), PJC’s material breach was a termination by the basis for such termination) or (iii) by PJC or Emergent Company pursuant to Section 10.1(b7.01(e) and promptly, but in no event later than the second business day following a termination by Newco pursuant to Section 7.01(e) or Section 10.1(g7.01(f) and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent , upon the consummation of such Takeover Proposal; provided, however, that the Company shall have no obligation to pay Newco such Termination Fee if prior to any termination by the Company or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent Newco pursuant to Section 10.1(b7.01(e) and or by Newco pursuant to Section 7.01(f)(ii) or (yg) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC a Material Adverse Effect in Financing shall pay have occurred or cause Newco shall have failed to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) comply with its obligations under Section 5.14 hereof. Notwithstanding anything any provision in this Agreement to the contrary, if PJC, Triax this Agreement is terminated (1) by the Company or Emergent receives a payment Newco under Section 10.3(a)7.01(b) and either (a) Newco shall have failed to perform its obligations under Section 5.14 or (b) all conditions to each of Newco's obligations specified in Sections 6.01 and 6.03 hereof other than the condition specified in 6.03(c) shall have occurred, such payment shall be deemed to be liquidated damagesbeen satisfied or waived, and shall be its sole and exclusive remedyas appropriate, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that if the agreements contained in this Section 10.3 are an integral part of Equity Financing shall be unavailable for any reason or (2) by the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due Company pursuant to this Section 10.37.01(h), and, then in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent each case Newco shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceeding, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date Company a termination fee of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.$1.65

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that this Agreement has been validly is terminated (i) by PJC the Company pursuant to Section 10.1(d9.1(e) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Buyer pursuant to Section 10.1(c9.1(b)(i) or and at such time the Company was entitled to terminate this Agreement pursuant to Section 10.1(e9.1(e), the Buyer shall pay to the Company a cash amount equal to $12,500,000 (the “Financing Termination Fee”). In the event that this Agreement is terminated (x) by the Company pursuant to Section 9.1(c) (unless solely in the case event of the Buyer’s Willful Breach of Section 10.1(e), PJC’s material breach was the basis for such termination5.3) or (iiiy) by PJC or Emergent either party pursuant to (A) Section 10.1(b9.1(b)(i) as a result of any of the conditions set forth in Section 8.1(a) or Section 10.1(g8.1(b) (to the extent relating to a Specified Antitrust Law or the French FDI Regime) not being satisfied by the Outside Date or (B) Section 9.1(b)(ii) (to the extent relating to a Specified Antitrust Law or the French FDI Regime), and, in the case of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that clauses (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of at or prior to the date time of such termination, then within two the conditions to Closing set forth in Sections 8.1 and 8.2 other than any of the conditions set forth in Section 8.1(a) or Section 8.1(b) (2to the extent relating to a Specified Antitrust Law or the French FDI Regime) Business Days following have been satisfied or waived by the expiration of such sixty Buyer (60) day period, PJC shall pay or cause other than those conditions that by their nature are to be paid satisfied at Closing, so long as such conditions remain capable of being so satisfied at Closing), the Buyer will pay to Emergent the Company a cash amount of One Million Five Hundred Thousand Dollars equal to $5,000,000 ($1,500,000.00) in immediately available fundstogether with the Financing Termination Fee, payable as instructed by Emergentapplicable, the “Termination Fee”). (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder The Buyer acknowledges that (i) the agreements agreement contained in this Section 10.3 are 9.3(a) is an integral part of the transactions contemplated by this Agreement Agreement, (ii) the amount of, and thatthe basis for payment of, the fee described therein is reasonable and appropriate in all respects and (iii) without these agreementsthis agreement, PJC the Company would not enter into this Agreement. Accordingly, if Emergent the Buyer fails to pay any amounts due pursuant to this Section 10.3, in a timely manner the applicable Termination Fee and, in order to obtain such payment, PJC and/or Triax commences the Company makes a Legal Proceeding claim that results in a judgment against Emergent for the amounts amount set forth in this Section 10.39.3(a), Emergent the Buyer shall pay to PJC and Triax their the Company its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant amount set forth in Section 9.3(a) at the prime rate of Bank of America, N.A. in effect from time to this Section 10.3 time from the date such payment was required to be made until hereunder, provided, that the date aggregate amount of such payment at obligation shall not exceed $750,000. All payments under this Section 9.3 shall be made by wire transfer of immediately available funds to an account designated by the rate of ten percent (10%) per annumCompany. (dc) Simultaneously If the Buyer is obligated to pay and does pay the applicable Termination Fee under Section 9.3(a), the Company’s receipt of the Termination Fee (together with any enforcement costs pursuant to Section 9.3(b), if, and solely to the execution extent, payable) in full shall be the sole and delivery exclusive remedy of the Company and any of its Affiliates against the Buyer, its Affiliates, and their respective officers, directors, managers, partners, members, advisors, consultants, agents and each of their respective assignees (collectively, but excluding the Buyer, the “Buyer Related Parties”) for any Losses suffered as a result of the failure of the Closing to be consummated or for a breach or failure to perform hereunder, and neither the Buyer nor any Buyer Related Party shall have any further Liability relating to or arising out of this Agreement. The Buyer Related Parties are express third party beneficiaries of this Section 9.3(c). The Company further agrees that, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally if the Buyer is obligated to pay and does timely pay the applicable Termination Fee under Section 9.3(a), the maximum aggregate liability of the Buyer Related Parties, taken as a whole, under this Agreement and the agreements contemplated hereby (including the other Transaction Documents) shall be limited to an amount equal to the amount of the applicable Termination Fee (together with any amounts due enforcement costs pursuant to PJC Section 9.3(b), if, and solely to the extent, payable), and in accordance with no event shall, the Company or any of its Affiliates or their respective Representatives seek to recover, or be entitled to recover, any money damages or other losses or damages of any kind, character or description following the termination of this Agreement in excess of such amount. Notwithstanding anything in this Section 10.39.3(c) or this Agreement to the contrary, the Company may seek specific performance of the Buyer’s obligation to consummate the Closing pursuant to Section 11.13 in circumstances where the Financing Termination Fee is paid or payable (including where the Company would have the right to terminate this Agreement pursuant to Section 9.1(e)), but in no event shall the Company be permitted or entitled to receive both a grant of specific performance of the Buyer’s obligation to consummate the Closing and payment of the Financing Termination Fee.

Termination Fee. (a) Notwithstanding anything to the contrary in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in Agreement: i. In the event that this Agreement has been validly is terminated (i) by PJC Seller pursuant to (A) Section 10.1(d) or Section 10.2(f), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e14(a)(v) (unless in the case of Section 10.1(e), PJC’s material with respect to a breach was the basis for such terminationor failure to perform by PropCo Purchaser) or (iiiB) Section 14(a)(viii) then, PropCo Purchaser shall pay, or cause to be paid, to Seller by PJC or Emergent pursuant wire transfer of immediately available funds a fee in an amount equal to Section 10.1(b) or Section 10.1(g) and, in $150,000,000 (the case of this clause (iii“PropCo Financing Termination Fee”), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination. ii. In the event that (A) this Agreement is terminated by Seller or the Purchasers (x) pursuant to Section 14(a)(ii) and at the time of such termination the condition set forth in Section 12(a)(iii)(2) has not been satisfied or (y) pursuant to Section 14(a)(iii) in respect of an Order, then Law or other action relating to the matters set forth in Section 12(a)(iii)(2); (B) at the time of such termination, all of the conditions to Closing set forth in Sections 12(a) and 12(b) hereof (including Sections 12(a)(iii)(1) and 12(a)(iii)(3)) and Sections 9(a) and 9(b) of the Real Estate Purchase Agreement have been satisfied (other than (I) the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or the condition set forth in Section 12(a)(iii)(2), (II) the condition set forth in Section 9(a) of the Real Estate Purchase Agreement solely with respect to Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or Section 12(a)(iii)(2) and (III) those conditions, which by their nature, are to be satisfied on the Closing Date but which are capable of being satisfied assuming the Closing were to occur on the date of termination); and (C) (x) there has been no willful and intentional action by Seller or any of its Affiliates with respect to the matters set forth in Section 12(a)(iii)(2), or (y) no limitation or suspension of, or failure of Seller and its Affiliates to hold, any Gaming License required to conduct operations at the Premises has occurred since the date of this Agreement that, in each case (clauses (x) and (y)), has caused the failure of any of the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or Section 12(a)(iii)(2) or Section 9(a) of the Real Estate Purchase Agreement (solely with respect to Sections 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(2)) or Section 12(a)(iii)(2)) to be satisfied, then, OpCo Purchaser shall pay, or cause to be paid, to Seller by wire transfer of immediately available funds a fee in an amount equal to $150,000,000 (the “OpCo Regulatory Termination Fee”), within two (2) Business Days following of the expiration date of such sixty termination. iii. In the event that (60A) day periodthis Agreement is terminated by Seller or the Purchasers (x) pursuant to Section 14(a)(ii) and at the time of such termination the condition set forth in Section 12(a)(iii)(3) has not been satisfied or (y) pursuant to Section 14(a)(iii) in respect of an Order, PJC Law or other action relating to the matters set forth in Section 12(a)(iii)(3); (B) at the time of such termination, all of the conditions to Closing set forth in Sections 12(a) and 12(b) hereof (including Sections 12(a)(iii)(1) and 12(a)(iii)(2)) and Sections 9(a) and 9(b) of the Real Estate Purchase Agreement have been satisfied (other than (I) the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or the condition set forth in Section 12(a)(iii)(3), (II) the condition set forth in Section 9(a) of the Real Estate Purchase Agreement solely with respect to Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or Section 12(a)(iii)(3) and (III) those conditions, which by their nature, are to be satisfied on the Closing Date but which are capable of being satisfied assuming the Closing were to occur on the date of termination); and (C) (x) there has been no willful and intentional action by Seller or any of its Affiliates with respect to the matters set forth in Section 12(a)(iii)(3), or (y) no limitation or suspension of, or failure of Seller and its Affiliates to hold, any Gaming License required to conduct operations at the Premises has occurred since the date of this Agreement that, in each case (clauses (x) and (y)), that has caused the failure of any of the conditions set forth in Section 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or Section 12(a)(iii)(3) or Section 9(a)(i) of the Real Estate Purchase Agreement (solely with respect to Sections 12(a)(i) (in respect of an Order, Law or other action (including any pending Action) relating to the matters set forth in Section 12(a)(iii)(3)) or Section 12(a)(iii)(3)) to be satisfied, then, PropCo Purchaser shall pay pay, or cause to be paid paid, to Emergent the amount Seller by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available fundsfunds a fee in an amount equal to $150,000,000 (the “PropCo Regulatory Termination Fee”), payable as instructed by Emergentwithin two (2) Business Days of the date of such termination. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder iv. Each party acknowledges that the agreements contained in provisions of this Section 10.3 14(c) are an integral part of the transactions contemplated by this Agreement and the Real Estate Purchase Agreement and that, without these agreements, PJC Seller, on one hand, and the Purchasers, on the other hand, would not enter into this Agreement or the Real Estate Purchase Agreement. Accordingly, if Emergent If PropCo Purchaser or OpCo Purchaser fails to promptly pay any amounts the amount due by it pursuant to this Section 10.314(c), andinterest shall accrue on such amount on a daily basis from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate set forth in The Wall Street Journal in effect on the date such payment was required to be made, plus five percent (5%). If, in order to obtain such payment, PJC and/or Triax Seller commences a Legal Proceeding an Action that results in a judgment against Emergent for Seller for the amounts set forth in this Section 10.3payment of such amount, Emergent PropCo Purchaser or OpCo Purchaser, as applicable, shall pay to PJC and Triax their Seller its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Legal ProceedingAction (such expenses and interest, together with interest collectively, “Enforcement Costs”); provided, however, that in all circumstances the maximum aggregate amount of the Enforcement Costs shall be $3,000,000 for each Purchaser. In no event shall either Purchaser be obligated to pay more than one Termination Fee, or a Termination Fee on more than one occasion; and in no event shall (w) OpCo Purchaser be responsible for or pay the PropCo Financing Termination Fee or the PropCo Regulatory Termination Fee, (x) PropCo Purchaser be responsible for or pay the OpCo Regulatory Termination Fee, (y) PropCo Purchaser be obligated to pay the PropCo Regulatory Termination Fee if OpCo Purchaser is obligated to pay the OpCo Regulatory Termination Fee and (z) OpCo Purchaser be obligated to pay the OpCo Regulatory Termination Fee if PropCo Purchaser is obligated to pay the PropCo Regulatory Termination Fee. The parties acknowledge that none of the PropCo Financing Termination Fee payable pursuant to Section 14(c)(i), the OpCo Regulatory Termination Fee payable pursuant to Section 14(c)(ii) or the PropCo Regulatory Termination Fee payable pursuant to Section 14(c)(iii) is a penalty, but are liquidated damages, and the damages resulting from termination of this Agreement under circumstances in which the PropCo Financing Termination Fee, the OpCo Regulatory Termination Fee or the PropCo Regulatory Termination Fee is payable are uncertain and incapable of accurate calculation and that the amounts payable pursuant to Sections 14(c)(i), 14(c)(ii) or 14(c)(iii) or this Section 14(c)(iv), as applicable, are reasonable forecasts of the actual damages that compensate the Seller and the Seller Related Parties for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and the Real Estate Purchase Agreement and in reliance upon this Agreement and the Real Estate Purchase Agreement and on the amounts due expectation of the consummation of the transactions contemplated herein and therein, and for the loss suffered by reason of the failure of such consummation. v. Notwithstanding anything to the contrary set forth in this Agreement, in any circumstance in which this Agreement is terminated and the PropCo Financing Termination Fee is payable pursuant to Section 14(c)(i) or the PropCo Regulatory Termination Fee is payable pursuant to Section 14(c)(iii), the PropCo Financing Termination Fee or the PropCo Regulatory Termination Fee, as applicable, shall constitute the sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) of Seller and its Subsidiaries and each of their respective Seller Releasing Parties against PropCo Purchaser or any PropCo Purchaser Released Party for any breach, loss or damage with respect to this Section 10.3 from Agreement, the date such payment was required Real Estate Purchase Agreement or any Ancillary Agreement or for the failure of the transactions contemplated hereby or thereby to be made until consummated, and upon payment of the date PropCo Financing Termination Fee or the PropCo Regulatory Termination Fee, as applicable, none of payment at PropCo Purchaser or any of the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery PropCo Purchaser Released Parties shall have any further liability or obligation relating to or arising out of this Agreement, Emergent the Real Estate Purchase Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby (including any liability for or damages arising out of (i) the willful and material breach by PropCo Purchaser of any provision of this Agreement prior to the valid termination of this Agreement or (ii) fraud with respect to any provision of this Agreement prior to the valid termination of this Agreement), except that PropCo Purchaser shall cause Lamington Road also be obligated to execute Seller for any Enforcement Costs and deliver to PJC a written undertaking in form and substance satisfactory to PJC any interest payable pursuant to which Lamington Road Section 14(c)(iv); provided, that, nothing in this Section 14(c) shall be legally obligated limit the ability of the Seller to pay any amounts due recover reimbursement for costs and expenses and indemnification under Section 5(g)(ii)(4) (Financial Statements and Reports) or Section 5(i)(iii) (Financing Cooperation); provided, further, that, subject to PJC Sections 14(d)(ii) and 14(d)(iv), nothing in this Section 14(c) shall restrict the right of Seller to an injunction, specific performance or other equitable relief in accordance with Section 14(d) prior to the termination of this Agreement. vi. Notwithstanding anything to the contrary set forth in this Agreement, in any circumstance in which this Agreement is terminated and the OpCo Regulatory Termination Fee is payable pursuant to Section 14(c)(ii), the OpCo Regulatory Termination Fee shall constitute the sole and exclusive remedy (whether at Law, in equity, in contract, in tort or otherwise) of Seller and its Subsidiaries and each of their respective Seller Releasing Parties against OpCo Purchaser or any OpCo Purchaser Released Party for any breach, loss or damage with respect to this Agreement, the Real Estate Purchase Agreement or any Ancillary Agreement or for the failure of the transactions contemplated hereby or thereby to be consummated, and upon payment of the OpCo Regulatory Termination Fee, none of OpCo Purchaser or any of the OpCo Purchaser Released Parties shall have any further liability or obligation relating to or arising out of this Agreement, the Real Estate Purchase Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby (including any liability for or damages arising out of (i) the willful and material breach by OpCo Purchaser of any provision of this Agreement prior to the valid termination of this Agreement or (ii) fraud with respect to any provision of this Agreement prior to the valid termination of this Agreement), except that OpCo Purchaser shall also be obligated to Seller for any Enforcement Costs and any interest payable pursuant to Section 14(c)(iv); provided, that, nothing in this Section 10.314(c) shall limit the ability of the Seller to recover reimbursement for costs and expenses and indemnification under Section 5(i)(v) (Financing Cooperation); provided, further, that, subject to Sections 14(d)(ii) and 14(d)(iv), nothing in this Section 14(c) shall restrict the right of Seller to an injunction, specific performance or other equitable relief in accordance with Section 14(d) prior to the termination of this Agreement.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated (i) by PJC If (A) Parent or the Company terminates this Agreement pursuant to Section 10.1(d9.1(c), Section 9.1(d) or Section 10.2(f9.1(g), (iiB) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent termination pursuant to Section 10.1(b9.1(d), all of the conditions set forth in Section 8.1 and Section 8.3 (other than Section 8.3(c)) shall have been satisfied or Section 10.1(gwaived, and (C) and, (x) a bona fide Acquisition Proposal (other than any Acquisition Proposal described in clause (iii)(x) of the case definition of such term) shall have been made to the Company or publicly disclosed after the date of this clause (iii), within sixty (60) days Agreement and not withdrawn prior to the date of such termination Emergent enters into any agreement or (y) a bona fide Acquisition Proposal described in clause (iii)(x) of the definition of such term shall have been made to the Company or shall have been publicly disclosed (and in either such event, with respect to which any director, officer or consummates an Alternative employee at the level of Senior Director or above of the Company has actual knowledge) after the date of this Agreement and not withdrawn or expressly rejected by the Company prior to the date of such termination, and (D) any Acquisition Proposal with is consummated within twelve (12) months of such termination or the Company enters into a third party other than PJC or one definitive agreement within twelve (12) months of PJC’s Affiliatessuch termination to effect any Acquisition Proposal, then within two on the date of such consummation or such entry into a definitive agreement, the Company shall pay a fee of $15,496,000 in cash (2) Business Days following the “Termination Fee”). Solely for purposes of this Section 9.2(b)(i), the term “Acquisition Proposal” shall have the meaning assigned to such termination (term in the case of Annex I, except that all references to “15%” or “85%” therein shall be deemed to be references to “50%”, and clause (iiii)(x) or clause of such “Acquisition Proposal” definition shall be deemed to refer only to K▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇, ▇▇▇▇-▇▇▇ and KIND-509. (ii) If Parent terminates this Agreement pursuant to Section 9.1(e), then, within three (3) or entry into business days after such an agreement or consummation of such Alternative Proposal (in termination, the case of clause (iii)) Emergent Company shall pay or cause to be paid to PJC and Triax Parent the aggregate amount of One Million Five Hundred Thousand Dollars Termination Fee. ($1,500,000.00iii) in immediately available funds, payable as instructed by PJC and Triax. In addition to If the foregoing, and notwithstanding anything in Company terminates this Agreement pursuant to the contrarySection 9.1(h), and without limiting any other provision then, concurrently with such termination of this Agreement or any other Transaction Documentby the Company as set forth in Section 9.1(h) (or, in if later, promptly following the event that (x) this Agreement has been validly terminated provision by Emergent Parent of wire transfer instructions pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of 9.2(b)(iv)), the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC Company shall pay or cause to be paid to Emergent Parent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by EmergentTermination Fee. (biv) Notwithstanding Any amount payable by the Company pursuant to the preceding clauses (i), (ii) or (iii) shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent (and, notwithstanding anything in this Agreement herein to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall not be deemed required prior to be the designation of such account by Parent). Except in the case of common law fraud (not including in any event any constructive fraud or any fraud that is not intentional or deliberate) or a Willful Breach, notwithstanding anything else to the contrary in this Agreement, payment of the Termination Fee shall constitute liquidated damages, and shall be its sole from and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the after such termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained as described in this Section 10.3 are an integral part 9.2(b) the Company shall have no further liability or obligations of the transactions contemplated by this Agreement and that, without these agreements, PJC would not enter into this Agreement. Accordingly, if Emergent fails to pay any amounts due pursuant to this Section 10.3, and, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) kind in connection with such Legal Proceeding, together with interest on this Agreement or the amounts due pursuant to termination contemplated hereby other than as provided under this Section 10.3 from 9.2(b). For the date such payment was required to avoidance of doubt, in no event shall the Company be made until the date of payment at the rate of ten percent (10%) per annum. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3the Termination Fee on more than one occasion.

Termination Fee. (a) Notwithstanding anything in If this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly is terminated (i) by PJC the Company or Buyer pursuant to Section 10.1(d8.1(e) where the applicable injunction or other order is issued pursuant to any Antitrust Law, (ii) by the Company pursuant to Section 8.1(c) due to a material breach by Buyer of Section 5.2, which breach results in the conditions set forth in either Section 6.1(a) or Section 10.2(f6.1(b) (in each case, as such conditions apply with respect to any Antitrust Law) being incapable of being satisfied, or (iii) by the Company or Buyer pursuant to Section 8.1(d) and as of the Outside Date, one or more of the conditions set forth in Section 6.1(a) or Section 6.1(b) (in each case, as such conditions apply with respect to any Antitrust Law) has not been satisfied and, in each case of clauses (i), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause and (iii), within sixty all of the other conditions set forth in Article VI have been satisfied or are capable of being satisfied (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one any such conditions which by their nature cannot be satisfied until the Closing Date but subject to such conditions being capable of PJC’s Affiliatesbeing satisfied if the Closing Date were the date of termination), then Buyer will, within two three (23) Business Days following any such termination (termination, pay to the Company or its designee in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) cash by wire transfer in immediately available funds, payable as instructed funds to an account designated by PJC and Triaxthe Company a termination fee in an amount equal to $17,500,000.00 (the “Termination Fee”). In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of the date of such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder Each Party acknowledges that the agreements contained in this Section 10.3 8.3 are an integral part of the transactions contemplated by this Agreement Agreement, and that, without these agreements, PJC the Company would not enter into this Agreement. Accordingly, if Emergent Buyer fails to promptly pay any amounts applicable amount when due pursuant to this Section 10.38.3, and, in order to obtain such payment, PJC and/or Triax the Company commences a Legal Proceeding suit that results in a judgment against Emergent Buyer for the amounts fee set forth in this Section 10.38.3 or any portion of such fee, Emergent then Buyer shall pay to PJC and Triax their the Company its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal Proceedingsuit, together with interest on the amounts due pursuant to this Section 10.3 from amount of the fee at the prime rate published in The Wall Street Journal on the date such payment was required to be made until through the date of payment at the rate of ten percent (10%) per annumpayment. (da) Simultaneously with Notwithstanding anything to the execution and delivery of contrary contained in this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC any circumstance in which the Buyer makes payment of the Termination Fee pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.38.3, the Termination Fee shall constitute the sole and exclusive remedy of the Company, the Equity Holders and any of their respective Affiliates against Buyer, Merger Sub or any of their respective Affiliates for all Losses suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or thereunder or otherwise arising out of, or directly or indirectly relating to this Agreement, the negotiation, execution or performance hereof or the transactions contemplated hereby, and upon payment of the Termination Fee, none of Buyer, Merger Sub or any of their respective Affiliates shall have any further liability or obligation to the Company, any Equity Holder or any of their respective Affiliates relating to or arising out of this Agreement or the transactions contemplated hereby under any theory of law or equity.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that this Agreement has been validly terminated If (i) by PJC the Company shall have terminated this Agreement pursuant to Section 10.1(d) or Section 10.2(f8.1(g), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Parent shall have terminated this Agreement pursuant to Section 10.1(c8.1(h) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e8.1(f), PJC’s material breach was the basis for such termination) or (iii) (A) after the date of this Agreement and prior to such termination of this Agreement, an Alternative Proposal (substituting in the definition thereof “fifty percent (50%)” for each of “twenty percent (20%)” and “eighty percent (80%)” in each place each such phrase appears) is made to the Company or the Company Board or publicly proposed or publicly disclosed and not withdrawn (a “Qualifying Transaction”), (B) this Agreement is thereafter terminated (1) by PJC Parent or Emergent the Company pursuant to Section 10.1(b8.1(d) or (2) by Parent or the Company pursuant to Section 8.1(b) and at the time of any such termination, Parent could have terminated this Agreement pursuant to Section 8.1(f) or Section 10.1(g8.1(d), and (C) andconcurrently with or within twelve (12) months after such termination, the Company shall have (I) entered into a definitive agreement providing for a Qualifying Transaction or (II) consummated a Qualifying Transaction (in each case, whether or not the case of this specified Qualifying Transaction referenced in clause (iiiA)), within sixty then the Company shall pay, by wire transfer of immediately available funds to an account designated in writing by Parent, a fee in an amount equal to $756,500 in cash (60the “Termination Fee”), such payment to be made (x) days of such concurrently with (and as a condition to) termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause above, (ii)y) or entry into such an agreement or consummation of such Alternative Proposal (within one Business Day following termination in the case of clause (ii) above, or (z) within three (3) Business Days after the last to occur of the events set forth in clause (iii)) Emergent above (except, in the case of the consummation of a Qualifying Transaction, the Termination Fee shall pay or cause to be paid concurrently with (and as a condition to) such consummation); it being understood that in no event shall the Company be required to PJC and Triax pay the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and TriaxTermination Fee on more than one occasion. In addition Notwithstanding anything to the foregoing, and notwithstanding anything contrary in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Documentagreement entered into in connection with this Agreement, upon the payment by the Company of the Termination Fee in the event that (x) circumstances where such payment is required by this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days 8.3(a), none of the date of such terminationCompany, then within two its Subsidiaries or their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates and Representatives (2the “Company Related Parties”) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, and shall be its sole and exclusive remedy, have any further liability with respect to this Agreement, the other Transaction Documents or any other agreements, instruments and certificates entered into in connection with the transactions contemplated hereby, including any breach of this Agreement by the representationCompany, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in Agreement, the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges that the agreements contained in this Section 10.3 are an integral part of failure to consummate the transactions contemplated by this Agreement and thatAgreement, without these the other Transaction Documents or any of such other agreements, PJC would not enter into this Agreement. Accordinglyinstruments and certificates, if Emergent fails to pay or any amounts due pursuant to this Section 10.3claims, andActions under applicable Laws arising out of any such breach, in order to obtain such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent for the amounts set forth in this Section 10.3, Emergent shall pay to PJC and Triax their costs and expenses termination or failure (including reasonable attorneys’ fees in the event of fraud or willful and expenses) in connection with such Legal Proceedingmaterial breach), together with interest on to Parent, Merger Sub, the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annumEquity Investor or any Parent Related Party. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.

Termination Fee. (a) Notwithstanding anything in (a) If this Agreement to the contraryis terminated in accordance with Section 9.01(b), and without limiting any other provision of this Agreement or any other Transaction DocumentSection 9.01(c)(ii), in the event that this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d9.01(d), Section 9.01(e), Section 9.01(f), Section 9.01(h), Section 9.01(j), Section 9.01(k), Section 9.01(l), Section 9.01(m), Section 9.01(n), Section 9.01(o) or Section 10.2(f9.01(p), (ii) by Convertible Note Holders, including the Consenting Convertible Note Holders, thatthen, in the aggregateany such case, hold a majority Seller shall pay to Buyer by wire transfer of the aggregate principal amount of the outstanding Convertible Notes pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) and, in the case of this clause (iii), immediately available funds within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) five Business Days following such termination of this Agreement an amount equal to the reasonable and documented out-of-pocket costs and expenses (including fees and expenses of counsel) incurred by Buyer in connection with or related to the authorization, preparation, investigation, negotiation, execution and performance of this Agreement, any of the ancillary agreements, the transactions contemplated hereby and thereby (including the Chapter 11 Case and other judicial and regulatory proceedings related to such transactions) and the approval by the Bankruptcy Court of the foregoing, in an amount not to exceed $500,000 in the case aggregate (the “Expense Reimbursement”). In the event such termination is pursuant to Section 9.01(b), Section 9.01(c)(ii), Section 9.01(f)(ii), Section 9.01(h), Section 9.01(j), Section 9.01(k), Section 9.01(l), Section 9.01(m), Section 9.01(n), Section 9.01(o) or Section 9.01(p), then, in addition to the Expense Reimbursement, Seller shall pay to Buyer in cash an amount equal to four percent of clause the Closing Consideration (the “Termination Fee”). The claim of Buyer in respect of the Expense Reimbursement and the Termination Fee shall constitute a super-priority an administrative expense claim, senior to all other administrative expense claims of Seller, as administrative expenses under sections 503 and 507(b) of the Bankruptcy Code in the Chapter 11 Case. The Termination Fee shall be paid by wire transfer of immediately available funds within five Business Days following, as applicable (y) the consummation of a Competing Transaction and solely from the proceeds received by Seller at the closing of such Competing Transaction, or (z) in the event of termination pursuant to Section 9.01(p), upon the effective date of any Chapter 11 plan. If Seller fails to pay in a timely manner any amount due pursuant to either of the first two sentences of this Section 9.04(a), then (i) or clause Seller shall reimburse Buyer for all reasonable and documented out-of-pocket costs and expenses (including disbursements and fees of counsel) incurred in the successful collection of such overdue amount, including in connection with any related Actions and (ii)) or entry into such an agreement or consummation Seller shall pay to Buyer interest on the applicable amount(s) payable pursuant to the first two sentences of this Section 9.04(a) from and including the date payment of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause amount was due to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days of but excluding the date of actual payment at the prime rate set forth in The Wall Street Journal in effect on the date such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay or cause payment was required to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergentmade. (b) Notwithstanding anything in Each of the parties to this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment shall be deemed to be liquidated damages, acknowledges and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder acknowledges agrees that the agreements contained in this Section 10.3 9.04 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, PJC the other parties would not enter into this Agreement. AccordinglyEach of the parties further acknowledges that the payment by Seller of the Termination Fee and Expense Reimbursement is not a penalty, if Emergent fails but rather liquidated damages in a reasonable amount that will compensate Buyer, together with any additional damages to pay any amounts due pursuant to this Section 10.3, andwhich Buyer may be entitled hereunder, in order to obtain the circumstances in which such payment, PJC and/or Triax commences a Legal Proceeding that results in a judgment against Emergent Termination Fee and Expense Reimbursement is payable for the amounts set forth efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Section 10.3Agreement and on the expectation of the consummation of the transactions contemplated herein, Emergent shall pay which amount would otherwise be impossible to PJC calculate with precision. Buyer’s receipt in full of the Termination Fee and Triax their costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Legal ProceedingExpense Reimbursement, together with interest on or collection expenses, if any, due and payable as provided herein, shall be the amounts due pursuant sole and exclusive monetary remedy of Buyer against Seller, and Seller shall have no further liability or obligation, under this Agreement or relating to or arising out of any such breach of this Agreement or failure to consummate the transactions contemplated herein. The obligation to pay the Termination Fee and Expense Reimbursement in accordance with the provisions of this Section 10.3 from 9.04 will (i) be binding upon and enforceable against Seller immediately upon the date Bankruptcy Court’s entering the Bidding Procedures Order, (ii) not be terminable or dischargeable thereafter for any reason, (iii) survive any subsequent conversion or dismissal or consolidation of the Chapter 11 Case and any plan of reorganization or liquidation in such payment was case, and (iv) survive the subsequent termination of this Agreement by any means. The obligations to pay Buyer the Termination Fee and Expense Reimbursement, as and when required under this Agreement, are intended to be, and upon entry of the Bidding Procedures Order are, binding upon (A) Seller, (B) any successors or assigns of Seller, (C) any trustee, examiner or other representative of Seller’s estate, (D) the reorganized Seller and (E) any other entity vested or revested with any right, title or interest in or to Seller, or any other Person claiming any rights in or control (direct or indirect) over Seller (each of (A) through (E), a “Successor”) as if such Successor were the Seller hereunder. The obligation of Seller to pay Buyer the Termination Fee and Expense Reimbursement, as and when required under this Agreement, may not be made until discharged under Sections 1141 or 727 of the date Bankruptcy Code or otherwise and may not be abandoned under Section 554 of payment at the rate of ten percent (10%) per annumBankruptcy Code or otherwise. (dc) Simultaneously with For the execution and delivery avoidance of doubt, Buyer may pursue (i) a grant of specific performance prior to the termination of this AgreementAgreement to cause the Closing and performance of this Agreement and (ii) concurrently pursue the payment of the Termination Fee and Expense Reimbursement, Emergent but under no circumstances shall Buyer be permitted or entitled to receive both (A) the remedy of specific performance to cause Lamington Road to execute the Closing and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3(B) the payment of the Termination Fee or Expense Reimbursement.

Termination Fee. (a) Notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in In the event that (x) this Agreement has been validly is terminated (i) by PJC the Company pursuant to Section 10.1(d) or Section 10.2(f10.1(f), (iiy) this Agreement is terminated by Convertible Note Holders, including the Consenting Convertible Note Holders, that, in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes Parent pursuant to Section 10.1(c10.1(h), or (z) the Company accepts any Takeover Proposal (or Superior Takeover Proposal) within two years after this Agreement is terminated by Parent pursuant to Section 10.1(e) (unless in the case of Section 10.1(e), PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent pursuant to Section 10.1(b) or Section 10.1(g) andthen, in each such case, the case Company shall pay Parent a fee equal to the sum of this clause (iii), within sixty (60) days of such termination Emergent enters into any agreement with respect to or consummates an Alternative Proposal with a third party other than PJC or one of PJC’s Affiliates, then within two (2) Business Days following such termination (in the case of clause (i) or clause (ii)) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (iii)) Emergent shall pay or cause to be paid to PJC and Triax the aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by PJC and Triax. In addition to the foregoing, and notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Document, in the event that (x) this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b1,500,000) and (yii) Emergent has not entered into an Alternative Proposal within sixty Parent's Out-of-Pocket Expenses, which aggregate amount (60the "Section 10.4(b) days Amount") the parties acknowledge is a reasonable estimate (albeit a low estimate) as of the date of such terminationthis Agreement of the direct, then indirect and opportunity costs and expenses that Parent will incur in preparing for the Closing and which Section 10.4(b) Amount shall be payable by wire transfer of same day funds within two (2) Business Days following five business days after the expiration date of such sixty termination (60or in the case of (z) day periodabove, PJC shall pay or cause to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent. (b) Notwithstanding anything in this Agreement to the contrary, if PJC, Triax or Emergent receives a payment under Section 10.3(a), such payment 1,500,000 shall be deemed to be liquidated damagespaid within five days after the Company accepts any Takeover Proposal or Superior Takeover Proposal, and shall be its sole and exclusive remedy, with respect to any breach of the representation, warranty, covenant, obligation or agreement hereunder that was the basis of the termination of this Agreement that resulted in the making of such payment. (c) Emergent and each Consenting Convertible Note Holder Out-of- Pocket Expenses having already been paid). The Company acknowledges that the agreements contained in this Section 10.3 10.4(b) are an integral part of the transactions contemplated by in this Agreement Agreement, and that, without these agreements, PJC Parent and Sub would not enter into this Agreement. Accordingly; accordingly, if Emergent the Company fails to promptly pay any amounts the Section 10.4(b) Amount due pursuant to this Section 10.3, 10.4(b) and, in order to obtain such payment, PJC and/or Triax Parent or Sub commences a Legal Proceeding an action in arbitration that results in a judgment against Emergent the Company for such Section 10.4(b) Amount, the amounts set forth in this Section 10.3, Emergent Company shall pay to PJC and Triax their Parent its costs and expenses (including reasonable attorneys’ fees and expenses' fees) in connection with such Legal Proceedingaction in arbitration, together with interest on the amounts due pursuant to this Section 10.3 from the date such payment was required to be made until the date of payment 10.4(b) Amount at the rate of ten percent (10%) 8.0% per annum. In the event Parent has received the Section 10.4(b) Amount, it shall not (i) assert or pursue in any manner, directly or indirectly, any claim or cause of action based in whole or in part upon alleged tortious or other interference with rights under this Agreement against any entity or person submitting a Takeover Proposal or (ii) assert or pursue in any manner, directly or indirectly, any Claim or cause of action against the Company or any of its officers or directors based in whole or in part upon its or their receipt, consideration, recommendation or approval of a Takeover Proposal for the Company's exercise of its right of termination. (d) Simultaneously with the execution and delivery of this Agreement, Emergent shall cause Lamington Road to execute and deliver to PJC a written undertaking in form and substance satisfactory to PJC pursuant to which Lamington Road shall be legally obligated to pay any amounts due to PJC in accordance with this Section 10.3.