RECONFIRM ITS RECOMMENDATION OF
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THE BOARD OF
DIRECTORS OF SELLER FAILS TO DO SO WITHIN TEN BUSINESS DAYS AFTER ITS RECEIPT OF
BUYER'S REQUEST; (III) THE BOARD OF DIRECTORS OF SELLER SHALL HAVE APPROVED OR
RECOMMENDED TO THE STOCKHOLDERS OF SELLER AN ALTERNATIVE TRANSACTION (AS DEFINED
IN SECTION 7.3(E)); OR (IV) FOR ANY REASON SELLER FAILS TO CALL AND HOLD THE
SELLER MEETING BY THE OUTSIDE DATE; OR
(F) BY EITHER BUYER OR SELLER, IF THERE HAS BEEN A BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT ON THE PART OF THE OTHER PARTY SET FORTH IN THIS
AGREEMENT,
40
WHICH BREACH (I) CAUSES THE CONDITIONS SET FORTH IN SECTION 6.2(A) OR (B) (IN
THE CASE OF TERMINATION BY BUYER) OR 6.3(A) OR (B) (IN THE CASE OF TERMINATION
BY SELLER) NOT TO BE SATISFIED, AND (II) SHALL NOT HAVE BEEN CURED WITHIN 20
DAYS FOLLOWING RECEIPT BY THE BREACHING PARTY OF WRITTEN NOTICE OF SUCH BREACH
FROM THE OTHER PARTY;
PROVIDED, HOWEVER, THAT THE TERMINATING PARTY MAY NOT
THEN BE IN BREACH OF ITS MATERIAL OBLIGATIONS UNDER THIS AGREEMENT; OR
(G) BY BUYER, IF SELLER SHALL HAVE BREACHED ITS OBLIGATIONS SET FORTH IN
SECTION 5.1 OR SELLER SHALL FURNISH NON-PUBLIC INFORMATION TO ANY PERSON OR
ENTITY IN CONNECTION WITH AN ACQUISITION PROPOSAL, OR ENTER INTO DISCUSSIONS OR
NEGOTIATIONS WITH ANY PERSON OR ENTITY IN CONNECTION WITH AN ACQUISITION
PROPOSAL UNLESS SUCH DISCUSSIONS CONSTITUTE SELLER PERMITTED RESPONSE ACTIONS;
OR
(H) BY SELLER AT ANY TIME PRIOR TO THE APPROVAL OF THE SELLER VOTING PROPOSAL,
IF SELLER HAS RECEIVED A SUPERIOR PROPOSAL AND SELLER'S BOARD OF DIRECTORS SHALL
HAVE WITHDRAWN OR MODIFIED ITS RECOMMENDATION OF THE SELLER VOTING PROPOSAL IN
ACCORDANCE WITH SECTION 5.4, PROVIDED, HOWEVER, THAT SELLER MAY NOT TERMINATE
THIS AGREEMENT PURSUANT TO THIS SECTION 7.1(H) UNLESS (A) SELLER SHALL HAVE
COMPLIED WITH SECTION 5.1, (B) SELLER SHALL HAVE COMPLIED WITH SECTION 7.3,
INCLUDING WITHOUT LIMITATION HAVING REPAID ALL AMOUNTS DUE UNDER THE LOAN
AGREEMENT PRIOR TO SUCH TERMINATION AND (C) SELLER IS NOT OTHERWISE THEN IN
BREACH OF ITS MATERIAL OBLIGATIONS UNDER THIS AGREEMENT.
SECTION 7.2
EFFECTS OF TERMINATION.
IN THE EVENT OF TERMINATION OF THIS AGREEMENT AS PROVIDED IN SECTION 7.1, THIS
AGREEMENT SHALL IMMEDIATELY BECOME VOID AND THERE SHALL BE NO LIABILITY OR
OBLIGATION ON THE PART OF BUYER OR SELLER OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, STOCKHOLDERS OR AFFILIATES, EXCEPT AS SET FORTH IN SECTION 7.3 OF
THIS AGREEMENT OR IN THE LOAN AGREEMENTS AS PROVIDED IN THE FOLLOWING SENTENCE
AND EXCEPT THAT NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM LIABILITY FOR ANY
BREACH OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE
FOREGOING, THE PARTIES UNDERSTAND AND AGREE THAT THE TERMS AND CONDITIONS OF THE
LOAN AGREEMENT AND THE PARTIES RESPECTIVE RIGHTS AND OBLIGATIONS THEREUNDER
SHALL BE GOVERNED BY THE TERMS THEREOF, AND SHALL NOT BE AFFECTED BY THE
TERMINATION OF THIS AGREEMENT EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN OR
THEREIN.
WITHOUT LIMITING THE