PARENT OR THE COMPANY IS ENTITLED TO TERMINATE THIS
AGREEMENT PURSUANT TO SECTION 7.1(B)(II) (EXCEPT IF, IMMEDIATELY PRIOR TO THE
COMPANY STOCKHOLDER MEETING, AN EVENT OR CONDITION EXISTS THAT WOULD RESULT IN A
PARENT MATERIAL ADVERSE EFFECT) OR 7.1(D)(I) AND, CONCURRENTLY WITH OR WITHIN
TWELVE MONTHS AFTER SUCH A TERMINATION, THE COMPANY SHALL ENTER INTO AN
AGREEMENT, OR BINDING ARRANGEMENT OR UNDERSTANDING WITH RESPECT TO AN
ACQUISITION PROPOSAL (WHICH SHALL INCLUDE, FOR THIS PURPOSE, THE COMMENCEMENT BY
A THIRD PARTY OF A TENDER OFFER OR EXCHANGE OFFER OR SIMILAR TRANSACTION
DIRECTLY WITH THE COMPANY'S STOCKHOLDERS) WITH A THIRD PARTY (COLLECTIVELY, A
"THIRD PARTY DEAL") OR (Y) THIS AGREEMENT IS TERMINATED PURSUANT TO
SECTION 7.1(B)(IV), OR 7.1(D)(II) (EXCEPT, IN THE CASE OF 7.1(D)(II) ONLY, IF
THE COMPANY BOARD'S WITHDRAWAL OR MODIFICATION OF ITS APPROVAL OR RECOMMENDATION
OF THIS AGREEMENT OR THE MERGER OCCURS AFTER THE OCCURRENCE OF A PARENT MATERIAL
ADVERSE EFFECT), THEN, IN EACH CASE, THE COMPANY SHALL (IN LIEU OF ANY
OBLIGATION UNDER THIS AGREEMENT AND AS LIQUIDATED DAMAGES AND NOT AS A PENALTY
OR FORFEITURE) PAY TO PARENT $4,000,000 (THE "PARENT TERMINATION FEE") IN CASH.
SUCH PAYMENT SHALL BE MADE PROMPTLY, BUT IN NO EVENT LATER THAN THE SECOND
BUSINESS DAY FOLLOWING:
(I) IN THE CASE OF CLAUSE (X) RELATING TO A TERMINATION
PURSUANT TO SECTION 7.1(D)(I) AS A RESULT OF A BREACH OF SECTION 5.6, THE LATER
TO OCCUR OF SUCH TERMINATION AND THE ENTRY OF SUCH THIRD PARTY DEAL; (II) IN THE
CASE OF CLAUSE (X) OTHER THAN AS SET FORTH IN THE IMMEDIATELY PRECEDING CLAUSE
(I), THE LATER TO OCCUR OF SUCH TERMINATION AND THE CONSUMMATION OF SUCH THIRD
PARTY DEAL; AND (III) IN THE CASE OF CLAUSE (Y) SUCH TERMINATION.
(D)
THE PARTIES ACKNOWLEDGE THAT THE AGREEMENTS
CONTAINED IN SECTIONS 7.3(B), (C) AND (D) HEREOF ARE AN INTEGRAL PART OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND THAT, WITHOUT THESE AGREEMENTS,
PARENT AND MERGER SUB ON THE ONE HAND, AND THE COMPANY ON THE OTHER, WOULD NOT
ENTER INTO THIS AGREEMENT.
ACCORDINGLY, IF THE COMPANY FAILS PROMPTLY TO PAY
THE AMOUNTS DUE PURSUANT TO SECTIONS 7.3(B) AND/OR (C) HEREOF, OR IF PARENT
FAILS PROMPTLY TO PAY THE AMOUNTS DUE PURSUANT TO SECTION 7.3(B) AND/OR
(D) HEREOF, (I) THE PARTY FAILING TO SO PAY SHALL PAY INTEREST ON SUCH AMOUNTS
AT THE RATE OF TEN PERCENT (10%) PER ANNUM, COMPOUNDED ANNUALLY, AND (II) IF, IN
ORDER TO OBTAIN SUCH PAYMENT, A PARTY COMMENCES A SUIT OR TAKES OTHER ACTION
WHICH RESULTS IN A JUDGMENT OR OTHER BINDING DETERMINATION AGAINST THE NONPAYING
PARTY FOR THE FEES AND EXPENSES IN SECTIONS 7.3(B), 7.3(C) OR 7.3(D) HEREOF, THE
NONPAYING PARTY SHALL ALSO PAY TO THE PARTY ENTITLED TO RECEIVE PAYMENT ITS
COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) IN CONNECTION WITH
SUCH SUIT, TOGETHER WITH INTEREST PAYABLE UNDER THE PRECEDING CLAUSE (I).
ARTICLE VIII
MISCELLANEOUS
8.1.
NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
NONE OF THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT OR IN ANY
INSTRUMENT DELIVERED PURSUANT TO THIS