REQUIREMENT AND NO CURE PERIOD SHALL APPLY), WHICH BREACH OR FAILURE TO PERFORM
HAS NOT BEEN CURED BY THE COMPANY WITHIN THIRTY DAYS (30) FOLLOWING RECEIPT OF
NOTICE THEREOF FROM PARENT; OR
(II)
IF (A) THE COMPANY BOARD OR ANY COMMITTEE
THEREOF SHALL HAVE WITHDRAWN OR MODIFIED IN A MANNER ADVERSE TO PARENT ITS
APPROVAL OR RECOMMENDATION OF THE MERGER OR THIS AGREEMENT, OR APPROVED OR
RECOMMENDED AN ACQUISITION PROPOSAL, OR (B) THE COMPANY BOARD OR ANY COMMITTEE
THEREOF SHALL HAVE RESOLVED TO TAKE ANY OF THE FOREGOING ACTIONS.
7.2.
EFFECT OF
TERMINATION.
THE TERMINATION OF THIS AGREEMENT
PURSUANT TO THE TERMS OF SECTION 7.1 HEREOF SHALL BECOME EFFECTIVE UPON DELIVERY
TO THE OTHER PARTY OF WRITTEN NOTICE THEREOF.
IN THE EVENT OF THE TERMINATION
OF THIS AGREEMENT PURSUANT TO THE FOREGOING PROVISIONS OF THIS ARTICLE VII,
THERE SHALL BE NO OBLIGATION OR LIABILITY ON THE PART OF ANY PARTY HERETO
(EXCEPT AS PROVIDED IN SECTION 7.3 HEREOF) OR ITS STOCKHOLDERS OR DIRECTORS OR
OFFICERS IN RESPECT THEREOF, EXCEPT FOR AGREEMENTS WHICH EXPRESSLY SURVIVE THE
TERMINATION OF THIS AGREEMENT, EXCEPT FOR LIABILITY THAT PARENT OR MERGER SUB OR
THE COMPANY MIGHT HAVE TO THE OTHER PARTY OR PARTIES ARISING FROM A BREACH OF
THIS AGREEMENT DUE TO TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTIONS
7.1(C)(I) OR 7.1(D)(I) OR DUE TO THE FRAUDULENT OR WILLFUL MISCONDUCT OF SUCH
PARTY.
7.3.
FEES AND EXPENSES.
(A)
EXCEPT AS PROVIDED IN THIS SECTION 7.3,
WHETHER OR NOT THE MERGER IS CONSUMMATED, THE COMPANY, ON THE ONE HAND, AND THE
PARENT AND MERGER SUB, ON THE OTHER, EACH SHALL BEAR THEIR RESPECTIVE EXPENSES
INCURRED IN CONNECTION WITH THE MERGER, INCLUDING, WITHOUT LIMITATION, THE
PREPARATION, EXECUTION AND PERFORMANCE OF THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY, AND ALL FEES AND EXPENSES OF INVESTMENT BANKERS, FINDERS,
BROKERS, AGENTS, REPRESENTATIVES, COUNSEL AND ACCOUNTANTS, EXCEPT THAT THE
REGISTRATION AND FILING FEES INCURRED IN CONNECTION WITH THE FILING UNDER THE
HSR ACT AND THE REGISTRATION STATEMENT AND PROXY STATEMENT/PROSPECTUS SHALL BE
SHARED EQUALLY BY THE COMPANY AND PARENT.
(B)
NOTWITHSTANDING ANY PROVISION IN THIS
AGREEMENT TO THE CONTRARY, IF THIS AGREEMENT IS TERMINATED AS A RESULT OF A
BREACH OF THIS AGREEMENT IN ACCORDANCE WITH SECTIONS 7.1(C)(I) OR 7.1(D)(I),
THEN THE NONBREACHING PARTY SHALL BE ENTITLED TO RECEIVE FROM THE BREACHING
PARTY DAMAGES RESULTING FROM SUCH BREACH, INCLUDING WITHOUT LIMITATION, ALL
OUT-OF-POCKET FEES AND EXPENSES INCURRED OR PAID BY OR ON BEHALF OF THE
NONBREACHING PARTY OR ANY AFFILIATE OF THE NONBREACHING PARTY IN CONNECTION WITH
THIS AGREEMENT, THE MERGER AND TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING ALL
FEES AND EXPENSES OF COUNSEL, INVESTMENT BANKING FIRM, ACCOUNTANTS AND
CONSULTANTS; PROVIDED, HOWEVER, THAT NO PAYMENTS FOR DAMAGES SHALL BE PAYABLE TO
ANY PARTY PURSUANT TO THIS SECTION 7.3(B) IF A TERMINATION FEE IS PAID TO SUCH
PARTY PURSUANT TO SECTION 7.3(C) OR 7.3(D) BELOW.
39
(C)
NOTWITHSTANDING ANY OTHER PROVISION IN THIS
AGREEMENT TO THE CONTRARY, IF (X) THIS AGREEMENT IS TERMINATED BY THE COMPANY OR
PARENT AT A TIME WHEN