ANY PURCHASER OR ANY CONTROLLING PERSON
THEREOF OR BY OR ON BEHALF OF THE COMPANY, ANY OF ITS OFFICERS AND DIRECTORS OR
ANY CONTROLLING PERSON THEREOF; PROVIDED, THAT THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE 3 AND 4 SHALL TERMINATE ON THE THIRD ANNIVERSARY
OF THE CLOSING DATE.
EXCEPT AS OTHERWISE PROVIDED HEREIN, NO CLAIM SHALL BE
MADE FOR THE BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN ARTICLES 3 OR
4 AFTER THE DATE ON WHICH SUCH REPRESENTATION OR WARRANTY TERMINATES AS SET
FORTH IN THIS SECTION 11.1.
THE COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL
SURVIVE IN ACCORDANCE WITH THEIR TERMS.
11.2
FEES AND EXPENSES.
(A)
EXCEPT AS PROVIDED
BELOW, ALL FEES AND EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION AGREEMENTS SHALL BE PAID BY THE
PARTY INCURRING SUCH FEES OR EXPENSES, WHETHER OR NOT SUCH TRANSACTIONS ARE
CONSUMMATED.
(B)
THE COMPANY SHALL PAY TO THE PURCHASER A FEE
OF $1,250,000 IF (I) THE COMPANY TERMINATES THIS AGREEMENT (A) PURSUANT TO
SECTION 9.1(A)(VI) OR (B) PURSUANT TO SECTION 9.1(A)(I) AND (1) PRIOR TO SUCH
TERMINATION ANY PERSON SHALL HAVE MADE AND NOT WITHDRAWN (OR PUBLICLY DISCLOSED
ITS INTENTIONS TO MAKE) AN ACQUISITION PROPOSAL AND (2) WITHIN TWELVE (12)
MONTHS OF SUCH TERMINATION PURSUANT TO SECTION 9.1(A)(I) THE COMPANY ENTERS INTO
AN ACQUISITION
*CONFIDENTIAL TREATMENT REQUESTED
47
AGREEMENT WITH RESPECT TO, OR CONSUMMATES, AN ACQUISITION PROPOSAL WITH A PERSON
WHO MADE AN ACQUISITION PROPOSAL PRIOR TO SUCH TERMINATION OF THIS AGREEMENT OR
(II) THE PURCHASER TERMINATES THIS AGREEMENT PURSUANT TO SECTION 9.1(A)(V).
(C)
ANY PAYMENTS DUE UNDER THIS SECTION 11.2
SHALL BE PAID BY WIRE TRANSFER OF SAME-DAY FUNDS WITHIN ONE (1) BUSINESS DAY
AFTER BECOMING PAYABLE HEREUNDER.
(D)
THE PARTIES AGREE THAT THE AGREEMENTS
CONTAINED IN THIS SECTION 11.2 ARE AN INTEGRAL PART OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THAT, WITHOUT THESE AGREEMENTS, THE PARTIES
WOULD NOT ENTER INTO THIS AGREEMENT; ACCORDINGLY, IF EITHER PARTY FAILS TO PAY
WITHIN THE TIME PERIOD SET FORTH IN SECTION 11.2(C) ANY AMOUNTS DUE UNDER THIS
SECTION 11.2 AND, IN ORDER TO OBTAIN SUCH PAYMENT, THE OTHER PARTY COMMENCES A
SUIT THAT RESULTS IN A JUDGMENT AGAINST THE DEFAULTING PARTY FOR SUCH AMOUNTS,
THE DEFAULTING PARTY SHALL PAY INTEREST ON SUCH AMOUNTS FROM THE DATE PAYMENT OF
SUCH AMOUNTS WERE DUE TO THE DATE OF PAYMENT AT THE PRIME RATE AS QUOTED BY BANK
OF AMERICA, NA AS IN EFFECT ON THE DATE SUCH PAYMENT WAS DUE, TOGETHER WITH THE
COST AND EXPENSES OF THE OTHER PARTY (INCLUDING REASONABLE LEGAL FEES AND
EXPENSES) IN CONNECTION WITH SUCH SUIT.
11.3
NOTICES.
ALL NOTICES OR OTHER COMMUNICATIONS
REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING AND SHALL BE DELIVERED
PERSONALLY, BY FACSIMILE (WITH RECEIPT CONFIRMED TELEPHONICALLY) OR SENT BY
CERTIFIED, REGISTERED OR EXPRESS MAIL, POSTAGE PREPAID.
ANY SUCH NOTICE SHALL
BE DEEMED GIVEN IF DELIVERED PERSONALLY OR FACSIMILE, ON THE DATE OF SUCH
DELIVERY OR SUCH CONFIRMATION IS RECEIVED, OR IF SENT BY REPUTABLE