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.

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) The Company shall pay to Parent the Termination Fee, by PJC pursuant wire transfer of immediately available funds to Section 10.1(d) an account or Section 10.2(f)accounts designated in writing by Parent, (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 after demand 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 DocumentParent, in the event that (xA) this Agreement has been validly is terminated by Emergent Parent or the Company pursuant to Section 10.1(b9.1(b) and as a result of the failure to satisfy the Minimum Condition prior to such termination (provided, that (x) the condition to the Offer set forth in clause (A) of Annex A is satisfied at the time of such termination pursuant to Section 9.1(b), (y) Emergent has not entered into an Alternative Proposal within sixty the condition to the Offer set forth in clause (60C)(1) days of Annex A is satisfied at the time of such termination pursuant to Section 9.1(b), except where the failure to meet such condition arises out of or results from a Legal Proceeding brought by or on behalf of the date of such termination, Person who has made the bona fide Acquisition Proposal referred to in clause (B) below and (z) the right to terminate this Agreement pursuant to Section 9.1(b) is then within two available to Parent); (2B) Business Days following the expiration execution and delivery of this Agreement and prior to such sixty termination of this Agreement, a bona fide Acquisition Proposal shall have been publicly announced or shall have become publicly disclosed and, in either case, shall not have been withdrawn or otherwise abandoned; and (60C) day periodwithin twelve (12) months following such termination of this Agreement, PJC the Company enters into a definitive agreement with any Person (other than Parent, Acquisition Sub, or their Affiliates) with respect to an Acquisition Proposal or an Acquisition Proposal is consummated. For purposes of the foregoing, each reference to “25%” in the definition of “Acquisition Proposal” shall pay or cause be deemed to be paid a reference to Emergent the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergent“50%”.

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 Commitment Parties pursuant to this Section. To the extent that all amounts due pursuant to this Section 14(e) shall have been paid by the Company or the applicable Commitment Parties in connection with a termination of One Million Five Hundred Thousand Dollars ($1,500,000.00) this Agreement, the Commitment Parties shall not have any additional recourse against the Company for any obligations or liabilities relating to or arising from this Agreement. Absent a change in immediately available fundsLaw, payable as instructed by Emergentthe Company does not expect to have an obligation to withhold any Taxes on any required payment of the termination fee.

Termination Fee. (a) Notwithstanding anything in this Agreement In recognition of the efforts, expenses and other opportunities foregone by FBMS while structuring and pursuing the Merger, SWGB shall pay to the contraryFBMS a termination fee equal to $3,750,000 (“Termination Fee”), and without limiting any other provision by wire transfer of this Agreement or any other Transaction Document, immediately available funds to an account specified by FBMS in the event that this Agreement has been validly terminated of any of the following: (i) by PJC if SWGB terminates this Agreement pursuant to Section 10.1(d) or Section 10.2(f7.01(g), then SWGB shall pay FBMS the Termination Fee prior to and as a condition of such termination in accordance with Section 7.01(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 if FBMS terminates this Agreement pursuant to Section 10.1(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e7.01(f), PJC’s material breach was then SWGB shall pay FBMS the basis for Termination Fee within one (1) Business Day after notification of such termination) termination has been provided to the other Party; or (iii) if, after the date of this Agreement and prior to the termination of this Agreement, an Acquisition Proposal shall have been made known to senior management of SWGB or has been made directly to its shareholders generally or any Person shall have publicly announced (and not withdrawn) an Acquisition Proposal with respect to SWGB and (A) thereafter this Agreement is terminated (x) by PJC either FBMS or Emergent SWGB pursuant to Section 10.1(b7.01(c) because the Requisite SWGB Shareholder Approval shall not have been obtained or Section 10.1(g(y) 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 FBMS pursuant to Section 10.1(b) 7.01(d), and (yB) Emergent has not entered into an Alternative Proposal within sixty (60) days of prior to the date that is twelve months after the date of such termination, SWGB enters into any agreement or consummates a transaction with respect to an Acquisition Proposal (whether or not the same Acquisition Proposal as that referred to above), then within two (2) Business Days following SWGB shall, on the expiration earlier of the date it enters into such agreement and the date of consummation of such sixty transaction, pay FBMS the Termination Fee, provided, that for purposes of this Section 7.02(a)(iii), all references in the definition of Acquisition Proposal to “twenty percent (60) day period, PJC 20%)” shall pay or cause instead refer to be paid to Emergent the amount of One Million Five Hundred Thousand Dollars “ fifty percent ($1,500,000.00) in immediately available funds, payable as instructed by Emergent50%)”.

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(d‎Section 8.1(e) where the applicable injunction or Section 10.2(f)other order is issued pursuant to any Antitrust Law, (ii) by Convertible Note Holdersthe Company pursuant to ‎Section 8.1(c) due to a breach by Buyer of ‎Section 5.2, including the Consenting Convertible Note Holders, that, which breach results in the aggregate, hold a majority of the aggregate principal amount of the outstanding Convertible Notes pursuant conditions set forth in either ‎Section 6.1(a) (as such condition applies with respect to Section 10.1(cany Antitrust Law) or pursuant to Section 10.1(e‎Section 6.1(b) (unless in the case being incapable of Section 10.1(e)being satisfied or otherwise not being satisfied, PJC’s material breach was the basis for such termination) or (iii) by PJC the Company or Emergent Buyer pursuant to Section 10.1(b‎Section 8.1(d) and as of the Outside Date, one or more of the conditions set forth in ‎Section 6.1(a) (as such condition applies with respect to any Antitrust Law) or Section 10.1(g‎Section 6.1(b) has not been satisfied and, in the each case of this clause (iiiclauses ‎(i), within sixty ‎(ii) and ‎(iii), all of conditions set forth in ‎Section 6.1 (60) days of except as such termination Emergent enters into any agreement condition applies with respect to any Antitrust Law) and ‎Section 6.3 have been satisfied or consummates an Alternative Proposal with a third party are capable of being satisfied (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, pay to the Company or its designee in cash by wire transfer in immediately available funds to an account designated by the Company a non-refundable termination fee in an amount equal to $48,000,000 (such amount to be increased to $56,000,000 in the case of clause circumstances set forth in Section 8.1(d), the “Termination Fee”). Each Party acknowledges that (i) or clause the agreements contained in this ‎Section 8.3 are an integral part of this Agreement, and that, without these agreements, the Company would not enter into this Agreement, and (ii)) that the Termination Fee is not a penalty, but constitutes liquidated damages in a reasonable amount that will compensate the Company in circumstances in which the Termination Fee is payable. Accordingly, if Buyer fails to promptly pay any applicable amount when due pursuant to this ‎Section 8.3, and, in order to obtain such payment, the Company commences a suit that results in a judgment against Buyer for the fee set forth in this ‎Section 8.3 or entry into such an agreement or consummation any portion of such Alternative Proposal (in the case of clause (iii)) Emergent fee, then Buyer shall pay or cause to the Company its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate published in The Wall Street Journal on the date such payment was required 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 made through 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 Emergentpayment.

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 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 EmergentCompeting Transaction.

Termination Fee. (a) Notwithstanding anything in this If, but only if, the 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 by: (i) by PJC (x) either Parent or the Company pursuant to Section 10.1(d7.1(b)(i) or Section 10.2(f), (ii7.1(b)(iii) or 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(c7.1(d)(i), and (y) (A) the Company receives or has received a Competing Proposal from a Third Party after the date hereof which Competing Proposal is publicly disclosed or any Third Party shall have publicly announced an intention to make a Competing Proposal or a Competing Proposal shall have otherwise become known to the Company or the Company Board, and in each case such Competing Proposal was not publicly withdrawn at least five (5) Business Days prior to the Termination Date, in respect of a termination pursuant to Section 10.1(e7.1(b)(i) (unless in the case of or Section 10.1(e7.1(b)(iii), PJC’s material breach was respectively, or at least five (5) Business Days prior to the basis for such termination) or (iii) by PJC or Emergent date of termination of the Agreement in respect of a termination pursuant to Section 10.1(b7.1(d)(i) and (B) within twelve (12) months of the termination of this Agreement, the Company or its subsidiaries or Affiliated Entities enters into a definitive agreement with respect to, or consummates, a transaction in connection with a Competing Proposal (regardless of whether such Competing Proposal is the same one referred to in clause (A) above), then the Company shall pay, or cause to be paid, to Parent (or such person who may be designated by Parent) an amount equal to $47,000,000 (the “Termination Fee”) not later than the second (2nd) Business Day following the earlier to occur of the entry into a definitive agreement concerning a Competing Proposal or the date of the consummation of a transaction arising from such Competing Proposal; provided, however, that for purposes of this Section 10.1(g) and7.3(a)(i), the references to “fifteen percent (15%)” in the case definition of this clause Competing Proposal shall be deemed to be references to “fifty percent (iii50%)” and a Competing Proposal shall not be deemed to have been “publicly withdrawn” by any Third Party if, within sixty (60) days 12 months of such termination Emergent enters the relevant termination, the Company or any of its subsidiaries or Affiliated Entities shall have entered into any a definitive agreement with respect to a Competing Proposal or consummates an Alternative shall have consummated a Competing Proposal with a third party other than PJC made by 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 on behalf 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 Third Party 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.its Affiliates; or

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 periodAlternative Proposal payable by wire transfer of immediately available funds to such account or accounts as Purchaser may designate. Seller acknowledges that the agreements contained in this Section 10.2 are an integral part of the Transactions and that, PJC without these agreements, Purchaser would not enter into this Agreement. Accordingly, if Seller fails promptly to pay any amount due pursuant to this Section 10.2 and, in order to obtain such payment, Purchaser commences a suit which results in a judgment against Seller for the fee set forth in this Section 10.2, Seller shall pay or cause to be paid to Emergent Purchaser its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, together with interest on the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) the fee at the Prime Rate in immediately available fundseffect on the date such payment was required to be made. The payment of the fees contemplated by this Section 10.2 shall be in addition to, payable and not in limitation of, any other remedies or damages to which Purchaser shall be entitled in equity or law as instructed a result of any willful breach by EmergentSeller of its covenants under this Agreement.

Termination Fee. (ai) 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 (A) Parent shall terminate this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d7.1(g), (B) this Agreement shall be terminated pursuant to Section 7.1(b), Section 7.1(d)(i) or Section 10.2(f)7.1(f) and (1) at or prior to such termination, (ii) by Convertible Note Holdersthere shall exist or have been proposed an Acquisition Proposal which has not been withdrawn prior to such termination and, including the Consenting Convertible Note Holders, that, in the aggregate, hold solely with respect to a majority of the aggregate principal amount of the outstanding Convertible Notes termination pursuant to Section 10.1(c7.1(d))(i), such Acquisition Proposal shall have been publicly announced, and (2) within six months after such termination, Company shall enter into a definitive agreement with respect to any Company Acquisition (and such Company Acquisition is consummated regardless of whether such consummation occurs during such six month period) or any Company Acquisition shall be consummated, or (C) this Agreement shall be terminated pursuant to Section 10.1(e7.1(d)(i) (unless in and prior to or concurrent with the case of Section 10.1(e)Company Stockholders' Meeting or an adjournment thereof there shall have occurred a Trigger Event, 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 the case of this clause (iiiA) or (C), within sixty (60) days of promptly after such termination Emergent enters into any agreement with respect to termination, 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 (B), immediately prior to the consummation of such Company Acquisition, Company shall pay to Parent an amount in cash equal to $12.0 million (the "Termination Fee"). Notwithstanding the foregoing, a Termination Fee will not be payable pursuant to a termination pursuant to Section 7.1(b) if (a) as of the Outside Date (as such date may be extended pursuant to the terms of this Agreement): (i) the conditions set forth in Section 6.2(a) or clause 6.2(b) shall have not been satisfied or waived, (ii)) or entry into such an agreement or consummation of such Alternative Proposal (the condition set forth in the case of clause Section 6.1(e) shall have not been satisfied, (iii)) Emergent the shareholders of Parent shall pay have voted against the Share Issuance at a meeting called for that purpose, or cause (iv) Parent's legal counsel shall have not delivered to be paid Parent the opinion referenced in Section 6.1(d) and Company's legal counsel shall have delivered the opinion referenced in Section 6.1(d) to PJC Company; or (b) Company shall have sustained the burden of proving, in a court of competent jurisdiction, that any of the following resulted from the material breach by Parent of its obligations under Sections 5.1, 5.2 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 5.15 of this Agreement or any other Transaction Document, in the event that (x) this Agreement has the S-4 shall have not been validly terminated by Emergent declared effective as of the Outside Date (as such date may be extended pursuant to Section 10.1(b) and the terms of this Agreement), (y) Emergent has requisite waiting periods under the HSR Act shall have not entered into an Alternative Proposal within sixty (60) days expired or terminated early and requisite foreign antitrust approvals shall have not been obtained as of the Outside Date (as such date may be extended pursuant to the terms of this Agreement), or (z) the Parent Stockholders' Meeting shall have not been held as of the Outside Date (as such termination, then within two (2) Business Days following date may be extended pursuant to the expiration terms 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 Emergentthis 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 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 Xxxxxxxxx, (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 the termination contemplated hereby other Transaction Document, than as set forth in this Section 8.1.3. In no event shall Imara be required to pay 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 EmergentTermination Fee on more than one occasion.

Termination Fee. In the event that (ax) Notwithstanding anything in the Company terminates this Agreement pursuant to Section 8.1(c)(iii), (y) (A) prior to the contraryAcceptance Time and after the date hereof, any person shall have made an Alternative Transaction Proposal, which proposal has not been withdrawn and thereafter this Agreement is terminated by any party pursuant to either (1) Section 8.1(b)(ii) or (2) Section 8.1(b)(iii) due to a failure of the Minimum Condition or of the condition specified in Item 7 of Annex I to be satisfied prior to the Outside Date, and without limiting any other provision (B) within nine (9) months after such termination of this Agreement Agreement, an Alternative Transaction Proposal shall have been consummated or any other definitive agreement with respect to an Alternative Transaction DocumentProposal shall have been entered into, or (z) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii), then the Company shall pay Parent a fee, in immediately available funds, 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(eone hundred twenty-five million dollars ($125,000,000) (unless in the case “Termination Fee”) immediately prior to and as a condition 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 a termination described in clauses (iii)x) above, within sixty (60) days or upon the consummation of such termination Emergent enters or entering into any a definitive agreement with respect to any transaction referenced in clause (y)(B) above, in the event of a termination described in clause (y)(A) above 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 event of a termination described in clause (iz) or clause (ii)) or entry into such an agreement or consummation above. For the purposes 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, the term “Alternative Transaction Proposal” shall have the meaning assigned to such term in Section 5.2(f)(i) of this Agreement except that the references to “17.5%” in the definition of “Alternative Transaction Proposal” in Section 5.2(f)(i) of this Agreement shall be deemed to be references to “50%.” In no event shall the Company be required to pay the Termination Fee on more than one occasion. The Company acknowledges that the agreements contained in this Section 8.3 are an integral part of the Transactions and that, without these agreements, Parent, Holding and Merger Sub would not enter into this Agreement. Parent, Holding and Merger Sub each agree and acknowledge that notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Documentcontrary (including Section 8.2), in the event that (x) any Termination Fee is paid to Parent, Holding or Merger Sub in accordance with this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) 8.3, the payment of such Termination Fee shall be the sole and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days exclusive remedy of such parties, its Subsidiaries, shareholders, Affiliates, officers, directors, employees and Representatives against the Company or any of its Representatives or Affiliates for, and upon such payment of the date Termination Fee, Parent, Holding or Merger Sub or any other such person shall not have the right to seek to recover any other money damages or seek any other remedy based on a claim in law or equity with respect to, (1) any loss suffered, directly or indirectly, as a result of such terminationthe failure of the Offer or the Merger to be consummated, then within two (2) Business Days following the expiration termination of such sixty this Agreement, (603) day periodany liabilities or obligations arising under this Agreement, PJC or (4) any claims or actions arising out of or relating to any breach, termination or failure of or under this Agreement, and upon payment of any Termination Fee in accordance with this Section 8.3, neither the Company, nor any Representative or Affiliate of the Company shall pay have any further liability or cause obligation to be paid the other parties relating to Emergent or arising out of this Agreement or the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergenttransactions contemplated hereby.

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 shall be paid within five days after the Company accepts any Takeover Proposal or Superior Takeover Proposal, the Out-of- Pocket Expenses having already been paid). The Company acknowledges that the agreements contained in this Section 10.4(b) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, Parent and Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Section 10.4(b) Amount due pursuant to this Section 10.4(b) and, in order to obtain such payment, Parent or Sub commences an action in arbitration that results in a judgment against the Company for such Section 10.4(b) Amount, the Company shall pay to Parent its costs and expenses ($1,500,000.00including attorneys' fees) in immediately available fundsconnection with such action in arbitration, payable as instructed by Emergenttogether with interest on the Section 10.4(b) Amount at the rate of 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.

Termination Fee. In the event that (ax) Notwithstanding anything in the Company terminates this Agreement pursuant to Section 8.1(c)(iii), (y) (A) prior to the contraryAcceptance Time and after the date hereof, any person shall have made an Alternative Transaction Proposal, which proposal has not been withdrawn and thereafter this Agreement is terminated by any party pursuant to either (1) Section 8.1(b)(ii) or (2) Section 8.1(b)(iii) due to a failure of the Minimum Condition or of the condition specified in Item 7 of Annex I to be satisfied prior to the Outside Date, and without limiting any other provision (B) within nine (9) months after such termination of this Agreement Agreement, an Alternative Transaction Proposal shall have been consummated or any other definitive agreement with respect to an Alternative Transaction DocumentProposal shall have been entered into, or (z) this Agreement is terminated by Parent pursuant to Section 8.1(d)(ii), then the Company shall pay Parent a fee, in immediately available funds, 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(eone hundred twenty-five million dollars ($125,000,000) (unless in the case “Termination Fee”) immediately prior to and as a condition 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 a termination described in clauses (iii)x) above, within sixty (60) days or upon the consummation of such termination Emergent enters or entering into any a definitive agreement with respect to any transaction referenced in clause (y)(B) above, in the event of a termination described in clause (y)(A) above 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 event of a termination described in clause (iz) or clause (ii)) or entry into such an agreement or consummation above. For the purposes 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, the term “Alternative Transaction Proposal” shall have the meaning assigned to such term in Section 5.2(f)(i) of this Agreement except that the references to “17.5%” in the definition of “Alternative Transaction Proposal” in Section 5.2(f)(i) of this Agreement shall be deemed to be references to “50%.” In no event shall the Company be required to pay the Termination Fee on more than one occasion. The Company acknowledges that the agreements contained in this Section 8.3 are an integral part of the Transactions and that, without these agreements, Parent, Holding and Merger Sub would not enter into this Agreement. Parent, Holding and Merger Sub each agree and acknowledge that notwithstanding anything in this Agreement to the contrary, and without limiting any other provision of this Agreement or any other Transaction Documentcontrary (including Section 8.2), in the event that (x) any Termination Fee is paid to Parent, Holding or Merger Sub in accordance with this Agreement has been validly terminated by Emergent pursuant to Section 10.1(b) 8.3, the payment of such Termination Fee shall be the sole and (y) Emergent has not entered into an Alternative Proposal within sixty (60) days exclusive remedy of such parties, its Subsidiaries, shareholders, Affiliates, officers, directors, employees and Representatives against the Company or any of its Representatives or Affiliates for, and upon such payment of the date Termination Fee, Parent, Holding or Merger Sub or any other such person shall not have the right to seek to recover any other money damages or seek any other remedy based on a claim in law or equity with respect to, (1) any loss suffered, directly or indirectly, as a result of such terminationthe failure of the Offer or the Merger to be consummated, then within two (2) Business Days following the expiration termination of such sixty this Agreement, (603) day periodany liabilities or obligations arising under this Agreement, 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.or

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 Bankruptcy Case and shall become due and payable upon 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 as provided for hereunder and 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 EmergentBidding Procedures Order.”

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 (i) by PJC Parent or Prototype shall have terminated this Agreement pursuant to Section 10.1(d6.1.5 or 6.1.6 and on or prior to such time any person or group (other than Parent and its affiliates) shall have made and not withdrawn a Takeover Proposal (or Section 10.2(fdisclosed in writing or publicly disseminated its intention to make a Takeover Proposal) and Prototype or any of its subsidiaries or affiliates enters into an Acquisition Agreement with respect to such Takeover Proposal within twelve (12) months of such termination (which Acquisition Agreement or successor thereto is thereafter consummated), or such Takeover Proposal is otherwise consummated within twelve (12) months of such termination, (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(c) or pursuant to Section 10.1(e) (unless in the case of Section 10.1(e)6.1.7, PJC’s material breach was the basis for such termination) or (iii) by PJC or Emergent Prototype shall have terminated this Agreement pursuant to Section 10.1(b6.1.8, then Prototype shall pay to Parent a fee (the "Termination Fee") or Section 10.1(gin an amount equal to US$3.0 million, plus any and all documented out-of-pocket expenses incurred by Parent and its affiliates in connection with this Agreement and the transactions contemplated by this Agreement, including without limitation the structuring thereof and diligence with respect thereto, up to an aggregate of US$1.5 million ("Expenses"). For the purposes of clauses (i) andand (ii) of the foregoing sentence, the percentage in the case definition of this clause Takeover Proposal shall be 50% in lieu of 15%. Any Termination Fee or Expenses that become payable hereunder shall be paid by wire transfer of immediately available funds to an account designated by Parent (iii), within sixty (60x) 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 above, within one business day following the occurrence of the event giving rise to such payment and (ii)y) or entry into such an agreement or consummation of such Alternative Proposal (in the case of clause (ii) or (iii)) Emergent above, prior to termination in the case of a termination by Prototype, and within one business day following termination in the case of termination by Parent. The parties hereto acknowledge that the agreements contained in this Section 6.4 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither party would enter into this Agreement; accordingly, if Prototype fails promptly to pay any amount due pursuant to this Section 6.4, and, in order to obtain such payment, Parent commences a suit which results in a judgment against Prototype for the fee set forth in this Section 6.4, such party shall pay or cause to be paid to PJC the other party its costs and Triax the aggregate amount of One Million Five Hundred Thousand Dollars expenses ($1,500,000.00including reasonable attorneys' fees and expenses) in immediately available fundsconnection with such suit, 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 together with interest on the amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) the fee at the prime rate of Citibank, N.A. in immediately available fundseffect on the date such payment was required to be made. The parties hereto agree that any amount payable pursuant to this Section 6.4 shall be deemed to represent liquidated damages and not a penalty and that the right to receive such amounts shall be the exclusive remedy in respect of any termination giving rise to such payment, payable as instructed except in the case of any willful and material breach by EmergentPrototype of any representation, warranty, covenant or agreement contained in this Agreement.

Termination Fee. In the event that (ai) Notwithstanding anything this Agreement is terminated by Parent or the Company pursuant to Section 7.2(c) or by Parent pursuant to Section 7.3(a), and there does not exist a breach by the Company of any representation, warranty, covenant or other agreement contained in this Agreement which would give rise to a failure of a condition set forth in Section 6.1 or Section 6.2 or (ii) all of the conditions set forth in Section 6.1 and Section 6.2 (other than Section 6.2(g)) shall have been satisfied or waived; provided that with respect to Section 6.1(c), only the Consent Condition needs to have been satisfied or waived, or, with respect to the contraryconditions set forth in Sections 6.2(f), 6.2(h) and without limiting any other provision 6.2(i), the Company shall have delivered an officers' certificate, duly executed by the Company's Chief Executive Officer and Chief Financial Officer, stating that the conditions to Closing (x) set forth in Sections 6.2(a) through (e) have been satisfied as of the Outside Date and (y) set forth in Sections 6.2(f), 6.2(h) and 6.2(i) are capable of being satisfied on the Outside Date (but for the fact that the Closing was not actually occurring) and the condition set forth in Section 6.2(g) shall fail to have been satisfied on or before the Outside Date and this Agreement has not previously been terminated in accordance with its terms, then Parent shall pay the Company a sum equal to eleven million three hundred thousand dollars ($11,300,000) (the "Termination Fee"), which Termination Fee shall be the Company's sole remedy in respect of termination 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 except in the case of Section 10.1(e), PJC’s material any willful 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 by Parent, Intermediate Parent or any other Transaction Document, in Merger Sub. 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 the Termination Fee shall be payable hereunder, such Termination Fee shall be paid in same day funds within sixty (60) days three Business Days of the date of such termination. Parent, Intermediate Parent and Merger Sub agree that this Section 7.6 is an integral part of the transactions contemplated by this Agreement. Accordingly, in the event the Termination Fee shall be payable hereunder and, in order to obtain payment of such Termination Fee, the Company takes legal action against Parent, Intermediate Parent or Merger Sub, then within two Parent, Intermediate Parent or Merger Sub shall be jointly and severally obligated to pay to the Company its reasonable costs and expenses (2) Business Days following the expiration including reasonable fees and expenses 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 ($1,500,000.00legal counsel) in immediately available funds, payable as instructed by Emergentconnection with such legal action.

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.

Termination Fee. If (aa)(i) Notwithstanding anything in this Agreement shall be terminated at a time at which the Purchasers are entitled to the contrary, and without limiting any other provision of terminate this Agreement or any other Transaction Documentpursuant to Sectxxx 00.0(x)(xx)(X), in (X) xx (X), xx (xx) xxxs Agreement shall be terminated at a time at which the event that Purchasers are entitled to terminate this Agreement has been validly terminated (i) by PJC pursuant to Section 10.1(d10.1(a)(i)(B) or Section 10.2(f10.1(a)(ii)(A), and (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 terminationclause (a)(ii) 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)sentence, within sixty (60) days twelve months of such termination Emergent the Company or any of its Subsidiaries enters into any agreement with respect to to, or consummates an Alternative Proposal with a third party other consummates, any Acquisition Proposal, then, in each such case, the Company shall promptly, but in no event later than PJC or one the date of PJC’s Affiliates, then within two (2) Business Days following such termination (or in the case of clause (i) b), if later, the date the Company or clause (ii)) or entry its Subsidiary enters into such agreement with respect to or consummates (whichever is earlier) such Acquisition Proposal), pay the Purchasers (to the account or accounts designated by the Purchasers) a termination fee in an agreement or consummation amount equal to $6,000,000, by wire transfer 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 in addition to any amount to which Purchasers are then entitled pursuant to Section 12.2(b). Notwithstanding the foregoing, the Company shall have no obligation to pay the $6,000,000 termination fee if (i) the Agreement is terminated pursuant to Section 10.1(a)(ii)(B), (ii) prior to such termination no Acquisition Proposal shall have been made, and notwithstanding anything (iii) the principal reason for the Change in this Agreement the Board Recommendation is a material adverse change in the financial condition or business of any Purchaser or any transaction, commitment, dispute or other event, in each case relating to the contraryPurchasers, and without limiting any other provision of this Agreement or any other Transaction Documentdevelopment or combination of developments relating to the Purchasers that, in any such case individually or in the event that (x) aggregate, has had or is reasonably likely to result in a material adverse effect on such Purchaser's ability to effect the Contemplated Transactions or upon the Company following the Closing. Such funds shall be distributed pro-rata to the Purchasers based upon the Allocation Notice. If the Company elects to terminate 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 10.1(a)(v), the date of Company, prior to such termination, then within two (2) Business Days following the expiration of such sixty (60) day period, PJC shall pay to the Purchasers (to the account or cause accounts designated by the Purchasers) an amount equal to be paid to Emergent the amount $6,000,000, by wire transfer of One Million Five Hundred Thousand Dollars ($1,500,000.00) in immediately available funds, payable as instructed by Emergentin addition to any amount to which Purchasers are then entitled pursuant to Section 12.2(b). Such funds shall be distributed pro-rata to the Purchasers based upon the Allocation Notice.

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 clause aggregate (i"Out-of-Pocket Expenses") incurred by CP&L and Holdco 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 Emergenton their behalf.

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 fundsfunds to an account designated by the Company a termination fee in an amount equal to $17,500,000.00 (the “Termination Fee”). Each Party acknowledges that the agreements contained in this Section 8.3 are an integral part of this Agreement, payable as instructed by PJC and Triaxthat, without these agreements, the Company would not enter into this Agreement. In addition Accordingly, if Buyer fails to promptly pay any applicable amount when due pursuant to this Section 8.3, and, in order to obtain such payment, the Company commences a suit that results in a judgment against Buyer for the fee set forth in this Section 8.3 or any portion of such fee, then Buyer shall pay to the foregoingCompany its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such suit, and notwithstanding anything together with interest on the amount of the fee at the prime rate published in this Agreement The Wall Street Journal on the date such payment was required 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 be made through 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 Emergentpayment.