FEES AND EXPENSES (INCLUDING
ATTORNEYS FEES AND EXPENSES) INCURRED IN CONNECTION WITH SUCH SUIT AND SHALL PAY
INTEREST ON THE AMOUNT OF THE PAYMENT AT THE PRIME RATE OF BANK OF AMERICA, N.A.
(OR ITS SUCCESSORS OR ASSIGNS) IN EFFECT ON THE DATE THE PAYMENT WAS PAYABLE
PURSUANT TO THIS SECTION 8.02.
SECTION 8.03.
EFFECT OF TERMINATION.
IN THE EVENT OF TERMINATION OF THIS
AGREEMENT BY EITHER THE COMPANY OR PARENT AND NEWCO AS PROVIDED IN SECTION 8.01,
WRITTEN NOTICE THEREOF SHALL BE GIVEN TO THE OTHER PARTY, SPECIFYING THE
PROVISION HEREOF PURSUANT TO WHICH SUCH TERMINATION IS MADE, AND THIS AGREEMENT
SHALL FORTHWITH BECOME VOID AND HAVE NO EFFECT, WITHOUT ANY LIABILITY OR
OBLIGATION ON THE PART OF NEWCO OR THE COMPANY, OTHER THAN THE PROVISIONS OF
SECTION 6.02(B), SECTION 8.02, THIS SECTION 8.03 AND ARTICLE IX, ALL OF WHICH
SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
NOTHING CONTAINED IN THIS
SECTION 8.03 SHALL RELIEVE ANY PARTY FROM LIABILITY FOR ITS BREACH OF THE
REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS SET FORTH IN THIS
AGREEMENT; PROVIDED THAT FOLLOWING TERMINATION OF THIS AGREEMENT BY NEWCO OR THE
COMPANY AS PROVIDED IN SECTION 8.01, IN THE ABSENCE OF A WILLFUL BREACH NO PARTY
SHALL BE LIABLE FOR DAMAGES IN EXCESS OF THREE MILLION SEVEN HUNDRED THOUSAND
DOLLARS ($3,700,000) (INCLUDING ANY AMOUNTS PAID PURSUANT TO SECTION 8.02).
SECTION 8.04.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED BY MUTUAL AGREEMENT OF
THE PARTIES AT ANY TIME PRIOR TO THE EFFECTIVE TIME; PROVIDED, HOWEVER, THAT,
AFTER THE APPROVAL OF THIS AGREEMENT BY THE STOCKHOLDERS OF THE COMPANY, NO
AMENDMENT MAY BE MADE THAT WOULD REDUCE THE AMOUNT OR CHANGE THE TYPE OF
CONSIDERATION INTO WHICH EACH SHARE OF COMPANY COMMON STOCK SHALL BE CONVERTED
UPON CONSUMMATION OF THE MERGER.
THIS AGREEMENT MAY NOT BE AMENDED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY THE PARTIES.
SECTION 8.05.
WAIVER.
AT ANY TIME PRIOR TO THE EFFECTIVE TIME, ANY PARTY MAY
(A) EXTEND THE TIME FOR THE PERFORMANCE OF ANY OBLIGATION OR OTHER ACT OF ANY
OTHER PARTY, (B) WAIVE ANY INACCURACY IN THE REPRESENTATIONS AND WARRANTIES
CONTAINED HEREIN OR IN ANY DOCUMENT DELIVERED PURSUANT HERETO AND (C) WAIVE
COMPLIANCE WITH ANY AGREEMENT OR CONDITION CONTAINED HEREIN.
ANY SUCH EXTENSION
OR WAIVER SHALL BE VALID IF SET FORTH IN AN INSTRUMENT IN WRITING SIGNED BY THE
PARTY OR PARTIES TO BE BOUND THEREBY.
THE FAILURE OR DELAY OF ANY PARTY TO THIS
AGREEMENT TO ASSERT ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR OTHERWISE SHALL
NOT CONSTITUTE A WAIVER OF THOSE RIGHTS, NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE
OF ANY OTHER RIGHT HEREUNDER.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01.
NON-SURVIVAL.
NONE OF THE REPRESENTATIONS, WARRANTIES,
COVENANTS AND OTHER AGREEMENTS IN THIS AGREEMENT SHALL SURVIVE THE EFFECTIVE
TIME, EXCEPT FOR THOSE COVENANTS AND AGREEMENTS CONTAINED HEREIN THAT BY THEIR
TERMS APPLY OR ARE TO BE PERFORMED IN WHOLE OR IN PART AFTER THE EFFECTIVE TIME.
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