Employees”), or a permissible Replacement therefor, enter into an employment agreement withParent in the form of Company Employment Agreement attached as Exhibit B-2 to the Merger Agreement,which employment agreements would become effective as of and subject to the occurrence of theEffective Time;**WHEREAS**, upon the terms and subject in all respects to the conditions set forth in thisAgreement and the Merger Agreement, Parent, Merger Sub and the Company have approved thisAgreement, the Merger and the Merger Agreement;**WHEREAS**, the respective Board of Directors of Parent, Merger Sub and the Company each has (i)determined that the Merger is advisable and fair to, and in the best interests of, their respectivestockholders, and (ii) subject to the terms and conditions set forth in this Agreement and theMerger Agreement, approved and adopted this Agreement and the Merger Agreement and approved theMerger and the other transactions contemplated by the Merger Agreement;**WHEREAS**, concurrent with the execution of this Agreement, the Company and Metro NetworksCommunications, Inc., a Maryland corporation and wholly owned subsidiary of Parent(“Network”), have executed and delivered that certain License and Services Agreement, datedas of the date hereof, a copy of which is annexed hereto as Exhibit D (the “LicenseAgreement”);**WHEREAS**, as a material inducement for the Company and the Stockholder Representative to enterinto this Agreement and grant to Parent the Option (as defined herein), Network has entered intothe License Agreement and agreed to the terms and conditions thereof, including, withoutlimitation, the payment to the Company of certain fees described therein;**WHEREAS**, each Party has duly executed undated copies of the Merger Agreement (the“Escrowed Merger Agreements” and together with the Initial Disclosure Schedule, the“Escrowed Documents”) to LOWENSTEIN SANDLER, PC (the “Document Escrow Agent”), andsuch Escrowed Documents have been delivered to the Document Escrow Agent;**WHEREAS**, pursuant to the terms of this Agreement, the Escrowed Documents shall be held inescrow by the Document Escrow Agent, who shall hold such Escrowed Documents in escrow in accordancewith the provisions set forth on Exhibit E annexed hereto pending exercise, expiration ortermination of the Option;**WHEREAS**, the Escrowed Documents shall be dated by the Document Escrow Agent and released toeach of the Parties in the event that Parent, in its sole discretion, elects to exercise theOption, which only may be exercised after satisfaction of the conditions precedent to the exerciseof the Option, all as more particularly set forth in this Agreement;**WHEREAS**, the Escrowed Documents shall be cancelled and destroyed by the Document Escrow Agentin accordance with the terms of this Agreement regarding notice to the Document Escrow Agent andother matters in the event of the expiration or termination of the Option; and
 
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**WHEREAS**, capitalized terms used but not defined herein shall have the respective meaningsassigned to such terms in the Merger Agreement;**NOW, THEREFORE**, in consideration of the above premises and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree asfollows:ARTICLE ITHE OPTIONSection 1.1 The Option. Upon the terms and subject to the satisfaction of theconditions set forth in Section 1.3 below, time being of the essence, the Parties agreethat Parent, at its sole election, shall have, and the Company and the Stockholder Representativehereby grant to Parent, the right (the “Option”), prior to the Expiration Date (as definedin Article V hereof), to cause the Escrowed Documents to be released from escrow, dated asof the date upon which Parent delivers the Exercise Notice (as defined in Section 1.4hereof) (except in the case of the Initial Disclosure Schedule, which shall retain its originaldate) and delivered by the Document Escrow Agent. Specifically, in the event that Networksatisfies the conditions precedent to exercise of the Option set forth herein and then Parentexercises the Option prior to the Expiration Date, automatically and without any further action byor consent of any of the Parties other than the provision of the Exercise Notice (a) the EscrowedDocuments shall be released from escrow by the Document Escrow Agent and (other than the InitialDisclosure Schedule) shall be dated by the Document Escrow Agent as of the date upon which Parentdelivers the Exercise Notice to the Company and the Document Escrow Agent (the “ExecutionDate”); (b) promptly after the Execution Date, the Escrowed Documents shall be distributed bythe Document Escrow Agent to all of the Parties (such that each Party shall receive a fullyexecuted and dated copy of the Escrowed Merger Agreements and the Initial Disclosure Schedule); and(c) the terms and provisions of the Merger Agreement (as supplemented by the Final DisclosureSchedule to be furnished by the Company to Parent pursuant to Section 1.4), including,without limitation, all pre-Closing covenants set forth therein, shall be in full force and effect.Section 1.2 Exercise Period. Parent shall have the right to exercise the Option if,and only if, Network timely satisfies each of the payment conditions set forth in Sections1.3(a), (b) and (c) below prior to the Expiration Date, time being of the essence. In theevent that Network satisfies each of such payment conditions prior to the Expiration Date, Parentshall have the right to exercise the Option at any time during the period commencing on the date onwhich Network timely satisfies the condition set forth in Section 1.3(c) below (the“Commencement Date”) and ending on the Expiration Date. The period from the CommencementDate through and including the Expiration Date is referred to herein as the “ExercisePeriod.”Section 1.3 Conditions to Exercise. The Option shall automatically become exercisableby Parent if, prior to the Expiration Date, Network timely satisfies each of the followingconditions, time being of the essence:
 
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(a) Initial Payment. In accordance with the provisions of the License Agreement,Network shall have paid to the Company the sum of $750,000 upon execution of the License Agreement;and(b) January 31 Payments. In accordance with the provisions of the License Agreement,Network (i) shall have paid to the Company, subsequent to the date hereof and on or before January31, 2009, the sum of $750,000 (the “First January 31 Payment”) and (ii) either (x) shallhave paid to the Company, subsequent to the date hereof and on or before January 31, 2009, anadditional sum of $750,000 (the “Second January 31 Payment — Discounted Basis”), or (y)shall have paid to the Company, at any time after January 31, 2009 and on or before February 20,2009, an additional sum of $755,000 (the “Second January 31 Payment — Non-DiscountedBasis”); and(c) February 20 Payment. In accordance with the provisions of the License Agreement,Network shall have paid to the Company, on or before February 20, 2009, the sum of $750,000 (the“February 20 Payment”).Section 1.4 Update of the Initial Disclosure Schedule; Notification of Exercise. Inthe event that Network timely satisfies each of the payment conditions set forth in Section1.3 prior to the Expiration Date and Parent determines that it may desire to exercise theOption, Parent shall provide the Company and the Document Escrow Agent with written notice (a“Pre-Exercise Notice”) of its intention to exercise the Option and of the date on which itintends to exercise the Option (such date to be not less than five nor more than ten days from thedate on which Parent delivers the Pre-Exercise Notice to the Company). Within five days of itsreceipt of a Pre-Exercise Notice, the Company shall deliver to Parent an updated disclosureschedule which shall reflect all changes, updates, revisions or other modifications to the InitialDisclosure Schedule that are required to assure that each of the representations and warranties inArticle IV of the Escrowed Merger Agreement, as supplemented by such update, remains accurate inall material respects or, with respect to any such representation or warranty that contains amateriality or Company Material Adverse Effect qualifier, remains accurate in all respects. If,within five days of its receipt of such updated disclosure schedule, Parent still desires toexercise the Option, it shall provide written notice of its election (the “ExerciseNotice”) to the Company and the Document Escrow Agent, such Exercise Notice to confirm thatNetwork has timely satisfied each of the payment conditions set forth in Section 1.3 IfParent does not provide the Exercise Notice within such five-day period but Network has timelysatisfied each of the payment conditions set forth in Section 1.3, Parent shall have theright, on up to one additional occasion during the Exercise Period, to furnish a Pre-ExerciseNotice to the Company (provided that in such case the Pre-Exercise Notice is furnished no laterthan five days prior to the Expiration Date). In the case of such Pre-Exercise Notice, the Companyshall be obligated to deliver an updated disclosure schedule (which shall reflect all changes,updates, revisions or other modifications to the Initial Disclosure Schedule that are required toassure that each of the representations and warranties in Article IV of the Escrowed MergerAgreement, as supplemented by such update, remains accurate in all material respects or, withrespect to any such representation or warranty that contains a materiality or Company MaterialAdverse Effect qualifier, remains accurate in all respects) within five days of the Company’sreceipt of such Pre-Exercise Notice, and Parent shall have the right, but not the obligation, toexercise the Option by delivering an Exercise Notice within five days of its receipt of suchupdated disclosure schedule.
 
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The updated disclosure schedule provided by the Company to Parent following the Company’sreceipt of an Exercise Notice is referred to herein as the “Final Disclosure Schedule.”ARTICLE IIREPRESENTATIONS AND WARRANTIES OF THE COMPANYThe Company hereby represents and warrants to Parent and Merger Sub as follows:Section 2.1 Corporate Organization. The Company is a corporation duly organized,validly existing and in good standing under the laws of the State of Delaware and has all necessarycorporate power and authority to operate and lease its properties and to carry on its business asnow being conducted.Section 2.2 Authority. The Company has all necessary corporate power and authority toexecute and deliver this Agreement and the Transaction Documents, to perform its obligationshereunder and thereunder and to consummate the transactions contemplated hereby and thereby. P.Richard Zitelman, in his capacity as Stockholder Representative, has full power and authority, withrespect to all Signing Stockholders that have executed and delivered a Stockholders’ Agreement, toexecute and deliver this Agreement and the Merger Agreement, to perform the StockholderRepresentative’s obligations hereunder and thereunder and to consummate the transactionscontemplated hereby and thereby. The execution and delivery of this Agreement by the Company andthe consummation by the Company of the transactions contemplated hereby have been duly authorizedby all necessary corporate action and (subject to receiving stockholder approval of the MergerAgreement and the Merger) no other corporate proceedings on the part of the Company are necessaryto authorize this Agreement or to consummate the transactions contemplated hereby. This Agreementhas been duly executed and delivered by the Company, and (assuming due authorization, execution anddelivery by the other parties thereto) this Agreement constitutes the legal, valid and bindingobligation of the Company, enforceable against the Company in accordance with its terms, exceptthat such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratoriumand other similar laws affecting creditors’ rights and remedies generally, and (ii) is subject togeneral principles of equity. The Company has received all approvals and consents necessary fromits board of directors and (subject to receiving stockholder approval of the Merger Agreement andthe Merger) stockholders to consummate the transactions contemplated by this Agreement.Section 2.3 No Conflicts.(a) The execution and delivery by the Company of this Agreement does not, and the performanceof this Agreement by the Company will not, (i) conflict with or violate the Company OrganizationalDocuments, as amended or restated, or conflict with or violate, in any material respect, any Lawsapplicable to the Company or by which any of the properties of the Company are bound, or (ii)except as set forth in Section 4.5 of the Initial Disclosure Schedule with respect to theconsequences of entering into the License Agreement or the consummation of the Merger, result inany breach of or constitute a default (or an event that with notice or lapse of time or both wouldbecome a default) under, or give to others any rights of termination,
 
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amendment, acceleration or cancellation of, or require payment under, or result in thecreation of a Lien on, any of the properties or assets of the Company pursuant to, any note, bond,mortgage, indenture, contract, lease, license, permit, franchise or other instrument or obligation(each, a “Contract”) to which the Company is a party or by which the Company or any of itsproperties is bound, except for, solely in the case of clause, (ii) such breaches, defaults,terminations, amendments or accelerations that would not, individually or in the aggregate, bereasonably likely to result in a Company Material Adverse Effect.(b) Except as set forth in Section 4.5 of the Initial Disclosure Schedule with respect to theconsequences of entering into the License Agreement or the consummation of the Merger, theexecution and delivery of this Agreement by the Company does not, and the performance of thisAgreement by the Company will not, require the Company to obtain any consent, approval,authorization or permit of, or to make any filing with or notification to, any GovernmentalAuthority based on any Laws or other requirements of any Governmental Authorities.Section 2.4 Litigation. There are no actions, suits, hearings, proceedings, audits,inspections, claims, inquiries or similar processes pending or, to the Knowledge of the Company,threatened, and, to the Knowledge of the Company, there are no investigations, examinations orreviews pending or threatened, that are reasonably likely to prohibit or restrain in any materialrespect the ability of the Company to perform its obligations under this Agreement or to consummatethe transactions contemplated hereby.Section 2.5 Brokers. No broker, finder or investment banker is entitled to anybrokerage, finder’s or other fee or commission in connection with the transactions contemplated bythis Agreement based upon arrangements made by or on behalf of the Company.ARTICLE IIIREPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBParent and Merger Sub hereby represent and warrant to the Company as follows:Section 3.1 Organization and Qualification.(a) Parent is a corporation duly organized, validly existing and in good standing under thelaws of Delaware and has all necessary corporate power and authority to own, lease and operate itsproperties and to carry on its business as it is now being conducted.(b) Merger Sub is a corporation duly organized, validly existing and in good standing underthe laws of the State of Delaware and has all necessary corporate power and authority to own, leaseand operate its properties and to carry on its business as it is now being conducted.Section 3.2 Authority.(a) Parent has all necessary corporate power and authority to execute and deliver thisAgreement and the Transaction Documents, to perform its obligations hereunder and
 
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thereunder and to consummate the transactions contemplated hereby and thereby. The executionand delivery of this Agreement by Parent and the consummation by Parent of the transactionscontemplated hereby have been duly authorized by all necessary corporate action and no othercorporate proceedings on the part of Parent are necessary to authorize this Agreement or toconsummate the transactions contemplated hereby. This Agreement has been duly executed anddelivered by Parent and (assuming due authorization, execution and delivery by the other partiesthereto) this Agreement constitutes a legal, valid and binding obligation of Parent, enforceableagainst Parent in accordance with its terms, except that such enforceability (i) may be limited bybankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’rights and remedies generally, and (ii) is subject to general principles of equity.(b) Merger Sub has all necessary corporate power and authority to execute and deliver thisAgreement and the Transaction Documents, to perform its obligations hereunder and thereunder and toconsummate the transactions contemplated hereby and thereby. The execution and delivery of thisAgreement by Merger Sub and the consummation by Merger Sub of the transactions contemplated herebyhave been duly authorized by all necessary corporate action and no other corporate proceedings onthe part of Merger Sub are necessary to authorize this Agreement or to consummate the transactionscontemplated hereby. This Agreement has been duly executed and delivered by Merger Sub and(assuming due authorization, execution and delivery by the other parties thereto) this Agreementconstitutes a legal, valid and binding obligation of Merger Sub, enforceable against Merger Sub inaccordance with its terms, except that such enforceability (i) may be limited by bankruptcy,insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights andremedies generally, and (ii) is subject to general principles of equity.Section 3.3 No Conflict; Required Filings and Consents.(a) The execution and delivery of this Agreement by Parent and Merger Sub do not, and theperformance of this Agreement by Parent and Merger Sub will not, (i) conflict with or violate therespective certificates of incorporation or by-laws, in each case as amended or restated, of Parentor Merger Sub, (ii) conflict with or violate any Laws applicable to Parent or Merger Sub or bywhich any of their respective properties is bound, or (iii) result in any breach of or constitute adefault (or an event that with notice or lapse of time or both would become a default) under, orgive to others any rights of termination, amendment, acceleration or cancellation of, or requirepayment under, or result in the creation of a Lien on, any of the properties or assets of Parent orMerger Sub pursuant to any Contract (other than any Contracts requiring Parent Lender Consents) towhich Parent or Merger Sub is a party or by which Parent or Merger Sub or any of their respectiveproperties is bound, except for (x) any such conflicts or violations described in clause (ii) aboveor (y) breaches, defaults, events, rights of termination, amendment, acceleration or cancellation,payment requirements or Liens described in clause (iii) above that would not impair in any materialrespect the ability of either Parent or Merger Sub to perform its obligations under this Agreementor materially delay the consummation of any of the transactions contemplated by this Agreement.(b) The execution and delivery of this Agreement by Parent and Merger Sub do not, and theperformance of this Agreement by Parent and Merger Sub will not, require Parent or Merger Sub toobtain any consent, approval, authorization or permit of, or to make any filing
 
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with or notification to, any Governmental Authorities based on Laws or other requirements ofany Governmental Authorities, except (i) those consents, approvals, authorizations or permitsreceived and in full force and effect, and (ii) where the failure to obtain such consents,approvals, authorizations or permits, or to make such filings or notifications, would not impair inany material respect the ability of either Parent or Merger Sub to perform its obligations underthis Agreement or materially delay the consummation of any of the transactions contemplated by thisAgreement.(c) There are no actions, suits, hearings, proceedings, audits, inspections, claims, inquiriesor similar processes pending (or, to the knowledge of Parent, threatened) against Parent or MergerSub that would materially and adversely affect Parent’s or Merger Sub’s ability to consummate anyof the transactions contemplated by this Agreement. There is no order, writ, injunction orjudgment to which Parent or Merger Sub is subject that would materially and adversely affectParent’s or Merger Sub’s ability to consummate any of the transactions contemplated by thisAgreement. To Parent’s knowledge, as of the date of this Agreement, no investigation, examinationor review by any Government Authority with respect to Parent, Merger Sub or any other Affiliate ofParent is pending or threatened, other than any investigation or review that would not materiallyand adversely affect Parent’s or Merger Sub’s ability to consummate any of the transactionscontemplated by this Agreement.Section 3.4 Brokers. No broker, finder or investment banker is entitled to anybrokerage, finder’s or other fee or commission in connection with the transactions contemplated bythis Agreement based upon arrangements made by or on behalf of Parent or any of its Affiliates.ARTICLE IVCOVENANTSSection 4.1 Operations of the Company.(a) From the date of this Agreement through the Expiration Date, unless (i) otherwiseexpressly contemplated by this Agreement or consented to in writing by Parent, which consent shallnot be unreasonably withheld, delayed or conditioned, (ii) in the case of clause (B) of thisSection 4.1(a), an expenditure constitutes a Budget Covered Expenditure, or (iii) otherwiseexpressly set forth in Section 6.2 of the Initial Disclosure Schedule, and subject in all cases toSection 4.3 below, the Company will (A) operate its business in the ordinary courseconsistent with past practice or in accordance with or pursuant to the Company’s written businessplans furnished to Parent prior to the Initial Escrow Date, and in compliance with all applicableLaws, (B) use commercially reasonable efforts to successfully execute the Rollout Plan, (C) usecommercially reasonable efforts to preserve substantially intact its business organizations, itsIntellectual Property and its relationships with licensors, licensees, customers, suppliers andlessors, and to retain the services of its key Employees, and (D) use commercially reasonableefforts to maintain and keep its properties and assets in as good repair and condition as atpresent, ordinary wear and tear excepted.
 
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(b) Nothing contained in this Agreement is intended to give Parent, directly or indirectly,the right to control or direct the Company’s operations during the period from the date hereofthrough the Expiration Date, and nothing contained in this Agreement is intended to give theCompany, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’operations. During the period from the date hereof through the Expiration Date, each of Parent andthe Company shall exercise, consistent with the terms and conditions of this Agreement, completecontrol and supervision over its and, as applicable, its Subsidiaries’, respective operations.Section 4.2 Stockholders’ Agreement. The Company shall use commercially reasonableefforts to cause all holders of the Company’s capital stock (other than the Signing Stockholders)or Convertible Securities to become parties to the Stockholders’ Agreement through the executionand delivery of a joinder agreement to the Stockholders’ Agreement, and, in connection therewith,the Company shall prepare and provide to each such holder of the Company’s securities a disclosuredocument describing, among other things, the Merger Agreement and the transactions contemplatedthereby, and which disclosure document shall be furnished to and deemed reasonably acceptable inform and substance by Parent prior to being furnished to any holders of the Company’s securities.Section 4.3 Conduct of the Company. Except (i) as otherwise expressly contemplated bythis Agreement or consented to in writing by Parent, which consent shall not be unreasonablywithheld, delayed or conditioned, (ii) Budget Covered Expenditures that otherwise would beprohibited by clauses (i) or (m) of this Section 4.3, or (iii) as set forth in Section 6.2of the Initial Disclosure Schedule, from the date hereof through the Expiration Date, the Companywill not do any of the following:(a) except for instances where the amount paid or payable by the Company, or the value ofsecurities, rights or other benefits granted by the Company, equal not more than $10,000 for anyNon-Inside Employee and not more than $100,000 for all Non-Inside Employees as a group, and in eachcase can be affected without breaching Section 4.3(m) hereof: (i) increase the rate ofcompensation or benefits payable to or to become payable to, any director or Employee of theCompany, except for (x) increases in salary or wages payable or to become payable pursuant toexisting written employment agreements or the Company Benefit Plans, in each case, as in effect onthe Initial Escrow Date, (y) the increases in the rate of compensation set forth in Section 6.2 ofthe Initial Disclosure Schedule or (z) merit increases of not more than five percent (5%) per annumgranted in the ordinary course of business to Non-Inside Employees of the Company; (ii) grant anyseverance or termination, bonus, retention or other special pay to, or enter into any employment,severance, retention, bonus or similar agreement with, any director or Employee of the Company;(iii) adopt any employee benefit plan or arrangement, except as may be required by applicable Law;(iv) otherwise modify or amend any of the foregoing except as required by Law; (v) grant any equityor equity-linked compensation or securities to any director or Employee of the Company; or (vi)make any investments in or loans to or, except in the ordinary course of business consistent withpast practices, pay any fees or expenses to, or enter into or modify any Contract, agreement, planor arrangement with, any director or Employee of the Company;
 
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(b) (i) acquire or agree to acquire, by merging or consolidating with, by purchasing an equityinterest in or a portion of the assets of, or by any other manner, any business or any corporation,partnership, association, limited liability company or other business organization or divisionthereof, or otherwise acquire or agree to acquire any assets or equity interests of any otherPerson (other than the purchase of assets in the ordinary course of business and consistent withpast practice), (ii) sell, lease, exchange, mortgage, transfer, license or otherwise dispose of, oragree to sell, lease, exchange, mortgage, transfer, license or otherwise dispose of, any of itsmaterial assets, or any of its assets aggregating $50,000 or more in total, except fornon-exclusive licensing arrangements permitted under the License Agreement and leasing of equipmentin the ordinary course of the Company’s business, consistent with past practice, or (iii) enterinto any joint venture, partnership, strategic alliance, profit sharing or similar agreement;(c) (i) repay any of the Company’s Indebtedness other than (x) Short-Term Indebtedness of upto $2,000,000 (inclusive of any accrued and unpaid interest thereon), provided that any suchrepayment of Short-Term Indebtedness does not impair, impede, delay, prevent or otherwisematerially adversely affect the Company’s successful execution of the Rollout Plan, and (y)Permitted Financings of Indebtedness of up to a total of $1,500,000, (ii) propose or adopt anyamendments or modifications to or restatements of the Company Organizational Documents, or (iii)effect any recapitalization, reclassification, split, subdivision, combination or like change inthe capitalization of the Company, or amend the terms of any outstanding securities of the Company,or issue any securities of the Company, except for (A) the repayment of the Company’s Indebtednessto the extent permitted in clause (i) of this Section 4.3(c), (B) the cancellation,conversion or exercise of Convertible Securities (including Convertible Notes) as contemplated bythe Escrowed Merger Agreement and (C) any issuance of securities in a Permitted Financing;(d) change any of its methods of accounting in effect at the Balance Sheet Date, except as maybe required by GAAP or by Law as concurred with by the Company’s Accountants, and then only afterprior written notice to, and an opportunity to comment by, Parent;(e) (i) issue, create, incur, assume, guarantee, endorse or otherwise become liable orresponsible with respect to (whether directly, contingently or otherwise), or modify in any way theterms of, any Indebtedness, including, without limitation, any Indebtedness to Stockholders, exceptfor (x) the repayment of the Company’s Indebtedness to the extent permitted in Section4.3(c)(i), (y) the incurrence of Indebtedness in connection with a Permitted Financing and (z)the conversion of the Convertible Securities (including the Convertible Notes) prior to theClosing, or (ii) subject to any Lien (other than a Permitted Lien) or otherwise encumber or permit,allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible)of, or used by, the Company;(f) make any material Tax election, change any material Tax election, change any annual Taxaccounting period, adopt or change any material method of Tax accounting, enter into any closingagreement, settle any material Tax claim or assessment or consent to the extension or waiver of thelimitations period applicable to any Tax claim or assessment;
 
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(g) declare, set aside, make or pay any dividend or other distribution in respect of anyshares of the Company’s capital stock or any other equity securities of the Company, or repurchase,redeem or otherwise acquire any such shares or equity securities, or make any other payments ordistributions whatsoever, in cash or in kind, with respect to any such shares or equity securities;(h) cancel or compromise any claim for an amount greater than $25,000, or waive or release anymaterial right of the Company, or settle or compromise any pending or threatened Proceeding or anymaterial claim or claims;(i) enter into any commitment for capital or other expenditures;(j) enter into any transaction, or enter into, modify or renew any Contract, plan orarrangement, which, by reason of its size, nature or otherwise, is not in the ordinary course ofbusiness;(k) (i) modify, amend, renew or terminate any Contract in any manner that reasonably could beexpected to be materially detrimental or adverse to the Company; (ii) enter into, modify, amend orterminate any lease of real property; (iii) materially change the amount of any insurance coverage;(iv) enter into any new Department of Transportation Contract or any other material Contract which,in either such case, is on terms that are not substantially similar to, and consistent with, theCompany’s past practice; (v) enter into any new Contract, or any modification, amendment, renewalor termination of any existing Contract, that would be prohibited by, or inconsistent with theterms of, the License Agreement or take any other action that would be prohibited by, orinconsistent with the terms of, the License Agreement; or (vi) except to the extent permitted inthe License Agreement, enter into any transaction or Contract, or modify, amend, renew or terminateany Contract, with any Company Competitor;(l) except for the repayment of the Company’s Indebtedness to the extent permitted inSection 4.3(c)(i), materially change or modify its credit, collection or payment policies,procedures or practices, including acceleration of collections or receivables (whether or not pastdue) or fail to pay or delay payment of payables or other liabilities, in each case in any materialrespect;(m) make any expenditures in any year that cause any of the seven (7) line items in theExpense Budget included in Section 6.2 of the Initial Disclosure Schedule [(the “ExpenseBudget”)] to exceed the budgeted amount for such line items;(n) enter into any guaranty or surety, or grant any power of attorney to any Person;(o) enter into any Contract that would not be permitted under the terms of the LicenseAgreement, including those pursuant to which the Company agrees to encumber, not assert, license,transfer or sell rights in, or with respect to, its Intellectual Property;(p) enter into or amend any Contract, understanding or commitment (A) that restrains,restricts, limits or impedes the ability of the Company to compete with or conduct any business orline of business in any geographic area or solicit the employment of any Persons, or
 
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(B) pursuant to which any other party is granted exclusive rights or “most favored nations”rights of any type or scope with respect to any of the Company’s products, technology, IntellectualProperty or business;(q) enter into any transaction with any Company Competitor, or enter into, modify or renew anyContract, plan or arrangement with any Company Competitor, in either case, which has a term(including all renewals and extensions) of greater than twelve months or which is not cancellableor able to be terminated without premium, penalty or other remedy on notice of 90 days or less;(r) adopt a plan of complete or partial liquidation, dissolution, restructuring,recapitalization or other reorganization of the Company; or(s) amend the Nelson Employment Agreement or any Company Employment Agreement or waive anymaterial right under the Nelson Employment Agreement or any Company Employment Agreement; or(t) agree to do anything (A) prohibited by this Section 4.3, (B) which would make anyof the representations and warranties of Company in this Agreement or any schedule, annex orcertificate delivered in connection herewith (including the Escrowed Merger Agreement and theInitial Disclosure Schedule) to be untrue or incorrect in any material respect (or, with respect torepresentations or warranties that are expressly qualified by a materiality or Company MaterialAdverse Effect qualification, in any respect) or would result in any of the conditions to theClosing not being satisfied, or (C) that would have or would be reasonably expected to have (takentogether with all other acts or omissions since the Initial Escrow Date) a Company Material AdverseEffect.Section 4.4 No Solicitation.(a) Except as set forth in this Section 4.4, during the period from the date hereof throughthe Expiration Date (as defined in Article V), the Company shall not, and shall not permitany of its Affiliates, directors, Employees, members, stockholders, representatives or agents(collectively, the “Representatives”) to, directly or indirectly:(i) encourage, negotiate, undertake, initiate, authorize, recommend, propose or enter into,whether as the proposed surviving, merged, acquiring or acquired Person or otherwise, anytransaction involving a merger, consolidation, business combination, purchase or disposition of anymaterial amount of the assets of the Company or any capital stock or other ownership intereststhereof other than the transactions contemplated by this Agreement (an “AcquisitionProposal”);(ii) encourage, solicit or initiate discussions, negotiations or submissions of proposals oroffers in respect of an Acquisition Proposal;(iii) furnish or cause to be furnished, to any Person, any information concerning thebusiness, operations, properties or assets of the Company in connection with an AcquisitionProposal;
 
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(iv) enter into any letter of intent, memorandum of understanding, agreement in principle,acquisition agreement, merger agreement, joint venture agreement or similar agreement (an“Alternative Acquisition Agreement”) providing for the consummation of a transactioncontemplated by any Acquisition Proposal (other than a confidentiality agreement referred to inthis Section 4.4(a) entered into in the circumstances referred to in this Section4.4(a)); or(v) otherwise cooperate in any way with, or assist or participate in, or encourage, any effortor attempt by any other Person to do or seek any of the foregoing.(b) Response to Superior Proposal. The Company and the Stockholder Representativeshall (and each of them shall cause their respective representatives to) immediately cease andcause to be terminated any existing discussions or negotiations with any Persons (other thanParent, Merger Sub and their Affiliates) conducted heretofore with respect to any AcquisitionProposal. Notwithstanding anything to the contrary set forth in this Agreement, the Company may, tothe extent failure to do so would be inconsistent with the fiduciary obligations of its Board ofDirectors (the “Company Board”) under Delaware law, as determined in good faith by theCompany Board after considering applicable Delaware law and after consultation with outsidecounsel, in response to a bona fide, unsolicited written Acquisition Proposal received by theCompany Board after the date of this Agreement, that the Company Board determines in good faithafter consultation with outside counsel constitutes, or would be reasonably likely to result in, aSuperior Proposal (as defined below), provided that a breach of this Section 4.4 by theCompany was not the principal cause of the Company’s receiving the Acquisition Proposal, andsubject to compliance with Section 4.4(c), at any time prior to the earlier of the timewhen the Option is exercised and the time when each of the holders of the outstanding capital stockof the Company have executed the Stockholders’ Agreement or the joinder agreement relating thereto(the “Full Stockholder Approval Time”) and after providing Parent not less than three days’written notice of its intention to take such actions, (x) furnish information with respect to theCompany to the Person making such Acquisition Proposal and its representatives pursuant to aconfidentiality agreement no less restrictive on the other party than the ConfidentialityAgreement, provided that (1) such confidentiality agreement may not include any provision callingfor an exclusive right to negotiate with the Company or precluding compliance by the Company withany provision of this Agreement (including this Section 4.4) or the Escrowed MergerAgreement and (2) the Company advises Parent of all such information delivered to such Personconcurrently with its delivery to such Person and concurrently with its delivery to such Person theCompany delivers to Parent all such information not previously provided to Parent, and (y)participate in discussions or negotiations with such Person and its representatives regarding suchAcquisition Proposal. The Company shall take all action reasonably requested by Parent that isnecessary to enforce each confidentiality, standstill or similar agreement relating to anAcquisition Proposal to which the Company is a party or by which it is bound (in each case, otherthan any such agreement with Parent). Without limiting the foregoing, it is understood that anyviolation of the restrictions set forth in this Section 4.4(a) by the Company or itsrepresentatives shall be deemed to be a breach of this Section 4.4(a) by the Company. TheCompany shall provide Parent with a correct and complete copy of any confidentiality agreemententered into pursuant to this Section 4.4(a) within 24 hours of the execution thereof.
 
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(c) Notices to Parent. In addition to the other obligations of the Company set forthin this Section 4.4, the Company shall promptly notify Parent, and in no event later than24 hours after receipt, if any proposal, offer, inquiry or other contact is received by, anyinformation is requested from, or any discussions or negotiations are sought to be initiated orcontinued with, the Company, in respect of any Acquisition Proposal, and shall, in any such noticeto Parent, indicate the identity of the Person making such proposal, offer, inquiry or othercontact and the terms and conditions of any proposals or offers or the nature of any inquiries orcontacts (and shall include with such notice copies of any written materials received from or onbehalf of such Person relating to such proposal, offer, inquiry or request), and thereafter shallpromptly keep Parent reasonably informed of all material developments affecting the status andterms of any such proposals, offers, inquiries or requests (and the Company shall promptly (and inany event within 24 hours) provide Parent with copies of any additional written materials receivedthat relate to such proposals, offers, inquiries or requests) and of the status of any suchdiscussions or negotiations.(d) Definition. For purposes of this Agreement, the term “Superior Proposal”means any unsolicited, bona fide written proposal made by a third party to acquire, directly orindirectly, for consideration consisting of cash and/or securities, 100% of the equity securitiesof the Company or assets of the Company equal to 100% of the Company’s consolidated assets or towhich 100% of the Company’s consolidated revenues are attributable, pursuant to a tender orexchange offer, a merger, a consolidation or a purchase of assets or securities, that is on termsand conditions that the Company Board determines in its good faith judgment (after consultationwith its outside legal counsel) to be (i) on terms more favorable to the holders of the Company’soutstanding capital stock and Convertible Securities from a financial point of view than thetransactions contemplated by the Merger Agreement, taking into account at the time of determinationall the terms and conditions of such proposal and the ability of the Person making such proposal toconsummate the transactions contemplated by such proposal, and the Merger Agreement (including anyproposal by Parent to amend the terms of the Merger Agreement) and (ii) reasonably capable of beingcompleted on the terms proposed, taking into account all financial, regulatory, legal and otheraspects of such proposal.(e) Alternative Acquisition Agreement. Notwithstanding anything to the contrary setforth in this Agreement, if (x) the Company Board receives an unsolicited, bona fide writtenAcquisition Proposal, (y) the Company’s breach of this Section 4.4 or any standstill orsimilar agreement with Parent or its Affiliates was not the principal cause of such AcquisitionProposal being made and (z) the Company Board determines in good faith that such AcquisitionProposal constitutes a Superior Proposal, the Company Board may, at any time prior to the earlierof the exercise of the Option or the Full Stockholder Approval Time, in response to such SuperiorProposal and following the expiration of the seven (7) Business Day period described below, causethe Company to enter into an Alternative Acquisition Agreement with respect to such SuperiorProposal, but only if the Company shall have concurrently with entering into such AlternativeAcquisition Agreement terminated this Agreement pursuant to Section 5.1(c) and prior thereto orconcurrently therewith paid to Parent the Termination Fee required pursuant to Section5.3(b) and extended the term of the License Agreement and the exclusivity granted thereunder byone year by means of an amendment to the License Agreement, the terms of which amendment arereasonably acceptable to Parent (the “License Amendment”), but in any event only after theseventh (7th) Business Day following Parent’s receipt of written notice (the
 
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“Notice”) from the Company advising Parent that the Company Board is prepared to enterinto an Alternative Acquisition Agreement with respect to such Superior Proposal and terminate thisAgreement (it being understood that the Company shall be required to deliver a new Notice (whichshall commence a new seven (7) Business Day period) in respect of any revised Superior Proposalfrom such third party or its affiliates that the Company proposes to accept, attaching the mostcurrent version of such agreement to such Notice (which version shall be updated on a currentbasis)), and only if the Company and its representatives shall have been reasonably available toParent and its representatives during such seven (7) Business Day period to negotiate anyadjustments in the terms of this Agreement proposed by Parent and, at the end of such seven (7)Business Day period, after taking into account any such adjusted terms as may have been proposed byParent since its receipt of such Notice, the Company Board has again in good faith made thedetermination referred to above in clause (z) above.Section 4.5 Notice of Actions and Other Matters. Each party hereto shall promptlynotify the other parties of any Proceeding that is instituted or threatened against such party torestrain, prohibit or otherwise challenge the legality of any transaction contemplated by thisAgreement or any other Transaction Document. The Company, on the one hand, and Parent and MergerSub, on the other hand, shall promptly notify the other in writing of (except to the extentcontemplated by this Agreement or the Escrowed Merger Agreement): (a) the discovery of any event,condition, fact or circumstance that constitutes a material breach of any representation orwarranty made by such party in this Agreement or the Escrowed Merger Agreement (or in the case ofany such representation or warranty that is qualified by any materiality or “Company MaterialAdverse Effect” qualification, a breach of any such representation or warranty) as it was deliveredto the Document Escrow Agent pursuant hereto, as any such representation or warranty wassupplemented by the Initial Disclosure Schedule, (b) the discovery of any event, condition, fact orcircumstance that constitutes a material breach of any representation or warranty made by suchparty in this Agreement or the Escrowed Merger Agreement (or in the case of any such representationor warranty that is qualified by any materiality or “Company Material Adverse Effect”qualification, a breach of any such representation or warranty) as it was delivered out of escrowby the Document Escrow Agent pursuant hereto, as any such representation or warranty wassupplemented by the Company Disclosure Schedule, (c) any known material breach of any materialcovenant or obligation of such party set forth in this Agreement or the Escrowed Merger Agreement,(d) any known event, condition, fact or circumstance that may make such party’s timely satisfactionof any of the conditions set forth in Section 7.1 of the Escrowed Merger Agreement impossible orunlikely, (e) any known event, condition, fact or circumstance that may make such party’s timelysatisfaction of any of the conditions set forth in Section 7.2 or Section 7.3, as applicable, ofthe Escrowed Merger Agreement impossible or unlikely, or (f) any notice or other communicationreceived by the party giving notice from any Governmental Authority in connection with thetransactions contemplated by this Agreement or any other Transaction Document or from any Personalleging that the consent of such Person is or may be required in connection with the transactionscontemplated by this Agreement or any other Transaction Document, if the subject matter of suchcommunication or the failure of such party to obtain such consent is reasonably likely to bematerial to the Company, the Surviving Company or Parent. The delivery of any notificationpursuant to this Section 4.5 shall not (x) be considered an admission that anyrepresentation or warranty herein is untrue or that any covenant herein has been breached or (y)cure any breach or non-compliance with any provision of this Agreement, except as otherwise setforth in Section
 
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10(a)(vi) of the Escrowed Merger Agreement (in the event that Parent exercises the Option).Notwithstanding any provision herein to the contrary, no notification given pursuant to thisSection 4.5 shall limit or reduce in any respect the notifying party’s indemnificationobligations set forth in Articles VIII or IX of the Escrowed Merger Agreement (in the eventthat Parent exercises the Option) or limit or otherwise affect the remedies available hereunder andunder the Escrowed Merger Agreement to the party receiving such notification or the conditions tosuch party’s obligation to consummate the Merger.Section 4.6 Access and Information.(a) During the period from the date hereof through the Expiration Date, (i) the Company shallafford the Parent and its officers, directors, employees, accountants, counsel and otherrepresentatives (collectively, the “Parent Representatives”), reasonable access duringbusiness hours to (A) all of the Company’s properties, books, Contracts and records and (B) allother information concerning the business, properties and personnel of the Company as the Parent orany Parent Representative shall request, and (ii) the Company shall provide to the Parent and theParent Representatives true, correct and complete copies of the Company’s (A) internal financialstatements, (B) Tax Returns, Tax elections and all other records and workpapers relating to Taxes,(C) a schedule of any deferred intercompany gain or loss with respect to transactions to which theCompany has been a party, and (D) receipts for any Taxes paid to foreign Tax Authorities. Noinformation or knowledge obtained in any investigation pursuant to this Section 4.6(a)Section4.6(a) shall affect or be deemed to modify any representation or warranty contained herein orin the Escrowed Merger Agreement or the conditions to the obligations of the parties hereto toconsummate the Merger.(b) During the period from the date hereof through the Expiration Date, the Company shalldeliver to Parent all unaudited quarterly financial statements of the Company (including itsbalance sheet and related unaudited statements of income (loss), changes in stockholders’ equityand cash flows), together with all notes and schedules related thereto, and regular monthlyunaudited financial statements and operating reports of the Company, as well as any additionalfinancial or operating data regarding the Company and its business as Parent may reasonably request(all such information, “Company Financial Information”). All Company Financial Informationto be delivered on a quarterly basis shall be delivered to Parent not later than the45th day following the last day of the quarter to which such Company FinancialInformation relates. All Company Financial Information to be delivered on a monthly basis shall bedelivered to Parent not later than the 30th day following the last day of the month towhich such Company Financial Information relates.(c) Within two (2) days after delivery to the Company by its auditor of the audited financialstatements for the fiscal year ended December 31, 2008 (and the auditor’s signed report thereon),but, in any event, not later than February 28, 2009, the Company shall deliver to Parent suchfinancial statements (including its balance sheet and related statements of income (loss) and cashflows), together with all notes and schedules related thereto, as well as any additional financialor operating data regarding the Company and its business during such period as Parent mayreasonably request, and provide Parent with reasonable access to the Company’s employees andexternal auditors engaged in the preparation, review or audit of such financial statements.
 
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(d) In furtherance of the foregoing, but not in limitation thereof, the Company shall usecommercially reasonable efforts to cause the Company Accountants to furnish to Parent and Parent’saccountants access to all work papers relating to the Company’s business for any of the periodscovered by the financial statements of the Company delivered to Parent in connection with thetransactions contemplated hereby.Section 4.7 Confidentiality. The terms of the confidentiality agreement dated July24, 2008, between the Company and Parent, as may from time to time be amended (the“Confidentiality Agreement”), are hereby incorporated by reference and shall continue infull force and effect until the Effective Time of the Merger, if the Option is exercised, at whichtime such Confidentiality Agreement and the obligations of the parties under this Section4.7 shall terminate; provided, however, that, if for any reason, this Agreementis terminated without the Option being exercised, the Confidentiality Agreement shall nonethelesscontinue in full force and effect pursuant to its terms.Section 4.8 Employment Agreements. The Company shall use commercially reasonableefforts to cause each of the Restricted Employees listed on Exhibit B-1 to the Escrowed MergerAgreement (or a permissible Replacement therefor, as such term is defined in the Section 7.2(q) ofthe Escrowed Merger Agreement) to enter into an employment agreement with Parent on or prior toJanuary 31, 2009, which employment agreement shall be in the form of Company Employment Agreementattached as Exhibit B-2 to the Merger Agreement and shall become effective as of and subject to theoccurrence of the Effective Time, and the Company agrees that the compensation terms for eachRestricted Employee (or his or her respective Replacement, if applicable) will in all cases beconsistent with the compensation terms for such Restricted Employee as set forth in Section 6.2 ofthe Company Disclosure Schedule attached to the Escrowed Merger Agreement, and that any employmentagreement for a Replacement shall be substantially similar to the Company Employment Agreementpreviously entered into by Parent and the Restricted Employee that such Replacement is replacing.Section 4.9 Public Announcements. Prior to the Execution Date, no party hereto willissue or cause the publication of any press release or other public announcement with respect tothis Agreement or any other Transaction Document or the transactions contemplated hereby or therebywithout the prior consent of Parent and the Company, as the case may be, provided, however, that:(i) nothing herein will prohibit Parent from issuing or causing publication of any such pressrelease or public announcement to the extent that Parent reasonably determines such action to berequired by Law, or the regulations of any Governmental Authority, including the New York StockExchange or any other self-regulatory organization, in which case Parent will use reasonableefforts to allow the Company reasonable time to comment on such release or announcement in advanceof its issuance and consider any such comments in good faith, and (ii) any party hereto maydisclose this Agreement and any other Transaction Document and the transactions contemplated herebyor thereby to third parties in connection with securing required consents of such third parties andin connection with any permits, approvals, filings or consents required by Law to be obtained. Tothe extent feasible, prior to the Execution Date, all press releases or other announcements ornotices regarding the transactions contemplated by this Agreement or the other TransactionDocuments (other than filings that Parent shall make pursuant to any applicable federal or statesecurities Laws) shall be made jointly by the parties.
 
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Section 4.10 Obligations of Merger Sub. Parent shall take all action necessary tocause Merger Sub to perform its obligations under this Agreement.Section 4.11 Limitations on Permitted Financings. Notwithstanding any provisionherein or in the Escrowed Merger Agreement to the contrary, the Company shall not enter into anyPermitted Financing unless (i) such financing satisfies each criterion set forth in the definitionof a Permitted Financing in Article I of the Escrowed Merger Agreement, (ii) anyStockholder or holder of Convertible Securities participating in such Permitted Financing is, orwill become prior to the Permitted Financing, a party to the Stockholders’ Agreement, (iii) if suchPermitted Financing involves Indebtedness, the terms of such Permitted Financing are reasonable andcustomary, and consistent with the Company’s financing arrangements in effect on the Initial EscrowDate, (iv) if such Permitted Financing involves Indebtedness, such Permitted Financing either (A)solely involves the issuance of Convertible Securities that will automatically convert into CompanyCommon Stock immediately prior to the Effective Time if not repaid prior to that time or (B) ispreceded by the delivery of a written acknowledgment from the Company to Parent to the effect thatthe entire amount of such Indebtedness shall be included as Indebtedness on the Pre-ClosingStatement, and (v) if such Permitted Financing involves Indebtedness, the aggregate principalamount of such Permitted Financing together with all other Indebtedness then outstanding does notexceed $1,500,000.Section 4.12 Related Party Transactions. From the date hereof through the ExpirationDate, the Company shall not enter into any transaction, agreement or other arrangement with anyRelated Person that would require disclosure under Section 4.18 of the Escrowed Merger Agreement ifsuch transaction, agreement or other arrangement had existed or been in effect as of the datehereof.Section 4.13 Capital Leases; License Affected Deferred Revenues. The Company shalluse commercially reasonable efforts to assure that between the date hereof and the Expiration Date(i) the aggregate dollar amount of all obligations under the capital leases of the Company(measured in accordance with GAAP) does not at any time exceed $1,000,000 and (ii) the aggregatedollar amount of License Affected Deferred Revenue of the Company does not at any time exceed$1,000,000.Section 4.14 Further Assurances. From time to time, as and when requested by anyParty, each Party shall execute and deliver, or cause to be executed and delivered, all suchdocuments and instruments and shall take, or cause to be taken, all such further or other actions,as such other Party may reasonably deem necessary or desirable to consummate the transactionscontemplated by this Agreement.ARTICLE VTERMINATION, AMENDMENT AND WAIVERSection 5.1 Termination. This Agreement may be terminated at any time prior toParent’s exercise of the Option (the date upon which the Option terminates under either thisSection 5.1 or Section 5.2 being referred to herein as the “ExpirationDate):
 
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(a) by written consent of Parent, the Company and the Stockholder Representative; or(b) by either Parent or the Company, if any U.S. federal or state or foreign court ofcompetent jurisdiction or any other Governmental Authority shall have issued a Court Order or takenany other action restraining, enjoining or otherwise expressly prohibiting the consummation of thetransactions contemplated hereby, and such Court Order or other Law or such other action shall havebeen final and non-appealable; or(c) by the Company in accordance with the terms and subject to the conditions set forth inSection 4.4(d); provided that prior thereto or concurrently therewith the Company shallhave paid or caused to be paid the Termination Fee to Parent in accordance with Section5.3(b) and shall have executed the License Amendment and delivered the executed LicenseAmendment to Parent (and such termination of this Agreement by the Company shall not take effectunless and until the Termination Fee shall have been received by Parent and the License Amendmentshall have been delivered to Parent).(d) The right of any Party to terminate this Agreement pursuant to this Section 5.1shall remain operative and in full force and effect regardless of any investigation made by or onbehalf of any Party, any Person controlling any Party or any of their respective Employees ordirectors (or other equivalent Person), whether prior to or after the execution of this Agreement.Section 5.2 Automatic Termination. This Agreement shall automatically terminatewithout any further action by, consent of or notice to any of the Parties upon the earlier to occurof the following (a) if Network shall not have timely, satisfied any of the payment conditionsdescribed in Sections 1.3(a), (b) and (c) in accordance with the terms thereof, time beingof the essence, or (b) if Parent shall not have exercised the Option on or before March 31, 2009.Section 5.3 Effect of Termination.(a) In the event of the termination of this Agreement pursuant to Section 5.1(a) or5.1(b) or Section 5.2, this Agreement shall forthwith become void, there shall be noLiability on the part of Parent, Merger Sub, the Company, the Stockholder Representative or any oftheir respective current or former directors, Employees, stockholders, partners, members,Affiliates, agents or other representatives (or any current or former director, Employee,stockholder, partner, member, agent or other representative of any thereof) to the other and allrights and obligations of any Party hereto shall cease, except as set forth in Section 4.7,this Section 5.3 and Article VI, and the Escrowed Documents shall be cancelled anddestroyed by the Document Escrow Agent and shall not have any legal force and effect, except thatnothing herein shall relieve any Party for any breach of any of the representations, warranties,covenants or agreements set forth in this Agreement. For the avoidance of doubt, the terminationof this Agreement pursuant to Section 5.1(a) or 5.1(b) or Section 5.2 shall have noeffect on the License Agreement, which shall remain subject to the termination and other provisionsset forth therein.(b) In the event of the termination of this Agreement pursuant to Section 5.1(c), theCompany shall pay to Parent a termination fee of $780,000 (the “Termination Fee”)
 
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by wire transfer of immediately available funds to an account to be designated by Parent andthe Company shall execute the License Amendment and deliver the License Amendment to Parent. Uponthe termination of this Agreement pursuant to Section 5.1(c) and the delivery of theTermination Fee and the License Amendment, this Agreement shall forthwith become void, there shallbe no Liability on the part of Parent, Merger Sub, the Company, the Stockholder Representative orany of their respective current or former directors, Employees, stockholders, partners, members,Affiliates, agents or other representatives (or any current or former director, Employee,stockholder, partner, member, agent or other representative of any thereof) to the other and allrights and obligations of any Party hereto shall cease, except as set forth in Section 4.7,this Section 5.3 and Article VI, and the Escrowed Documents shall be cancelled anddestroyed by the Document Escrow Agent and shall not have any legal force and effect, except thatnothing herein shall relieve any Party for any breach of any of the representations, warranties,covenants or agreements set forth in this Agreement. For the avoidance of doubt, the terminationof this Agreement pursuant to Section 5.1(c) shall have no effect on the License Agreement(as amended by the License Amendment), which shall remain subject to the termination and otherprovisions set forth therein. The Company acknowledges that the Termination Fee, the LicenseAmendment and the other provisions of this Section 5.3(b) are an integral part of thetransactions contemplated by this Agreement and that, without these agreements, Parent would notenter into this Agreement.Section 5.4 Amendment. This Agreement may not be amended, supplemented or otherwisemodified except by an instrument in writing signed by the Parties.Section 5.5 Waiver. At any time prior to the Expiration Date, any Party may, to theextent legally allowed, (a) extend the time for the performance of any of the obligations or otheracts of the other Parties, (b) waive any inaccuracies in the representations and warranties made tosuch Party contained herein or in any document delivered pursuant hereto, and (c) waive compliancewith any of the agreements or conditions for the benefit of such Person contained herein. Any suchextension or waiver shall be valid only if set forth in an instrument in writing signed by theParty or Parties to be bound thereby. Without limiting the generality or effect of the precedingsentence, no delay in exercising any right under this Agreement shall constitute a waiver of suchright, and no waiver of any breach or default shall be deemed a waiver of any other breach ordefault of the same or any other provision in this Agreement.Section 5.6 Effect of Option Exercise. In the event that Parent exercises the Optionin accordance with Article I hereof, and the Escrowed Documents shall have been releasedfrom escrow in accordance with said Article I and Exhibit E annexed hereto, thenthis Agreement shall automatically terminate and shall be of no further force and effect, and allrights and obligations of any Party hereto shall cease, except that nothing herein shall relieveany Party for any breach of any of the representations, warranties, covenants or agreements setforth in this Agreement or any other Transaction Document.
 
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ARTICLE VIGENERAL PROVISIONSSection 6.1 Expenses. Each of the parties hereto shall bear its own out-of- pocketcosts and expenses (including fees and disbursements of its financial advisors, legal counsel,accountants and consultants) incurred by it or its Affiliates in connection with the preparation,negotiation, execution, delivery and performance of this Agreement and the consummation of thetransactions contemplated hereby (collectively, “Expenses”), whether or not thetransactions contemplated by this Agreement are consummated; provided, however,that the Company may pay the Reported Indemnifiable Expenses of the holders of Company Common Stockor Convertible Securities.Section 6.2 Notices. All notices and other communications given or made pursuanthereto shall be in writing and shall be deemed to have been duly given or made as of the datedelivered, mailed or transmitted, and shall be effective upon receipt, if delivered personally,mailed by registered or certified mail (postage prepaid, return receipt requested) to the partiesat the following addresses (or at such other address for a Party as shall be specified by likechanges of address) or sent by electronic transmission to the fax number specified below: (a) If to Parent or Merger Sub:Westwood One, Inc.