THIS
AGREEMENT PURSUANT TO THIS (J) IS CONDITIONED UPON THE PAYMENT BY THE COMPANY TO
PARENT OF ANY AMOUNTS OWED BY IT PURSUANT TO SECTION 8.3(B) AND 8.3(C); OR
(K)
BY PARENT, PURCHASER OR THE COMPANY IF THE
SHARE ACQUISITION DATE SHALL NOT HAVE OCCURRED BY MARCH 31, 2004.
SECTION 8.2.
EFFECT OF TERMINATION.
IN THE
EVENT OF THE TERMINATION AND ABANDONMENT OF THIS AGREEMENT PURSUANT TO SECTION
8.1, THIS AGREEMENT, EXCEPT FOR THE PROVISIONS OF SECTIONS 6.3, 8.2, 8.3, 9.3,
9.4 AND 9.7 AND THE LAST SENTENCE OF SECTION 1.3, SHALL FORTHWITH BECOME VOID
AND HAVE NO EFFECT, WITHOUT ANY LIABILITY ON THE PART OF ANY PARTY OR ITS
AFFILIATES, DIRECTORS, OFFICERS OR SHAREHOLDERS EXCEPT AS PROVIDED IN SECTIONS
8.3 AND 9.3 OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
TO THE EXTENT THE COMPANY THEN OWES PARENT A TERMINATION FEE (AS DEFINED HEREIN)
PURSUANT TO THE PROVISIONS OF SECTION 8.3 HEREOF AT THE TIME OF SUCH
TERMINATION, TERMINATION BY THE COMPANY PURSUANT TO SECTION 8.1 SHALL NOT BE
EFFECTIVE UNLESS PRIOR TO OR SIMULTANEOUSLY THEREWITH SUCH TERMINATION FEE IS
PAID TO THE PARENT.
SECTION 8.3.
EXPENSES; TERMINATION FEE.
(A)
EXCEPT AS PROVIDED IN SECTION 8.3(B) AND
8.3 (C) OF THIS AGREEMENT, ALL FEES AND EXPENSES INCURRED BY THE PARTIES HERETO
SHALL BE BORNE SOLELY AND ENTIRELY BY THE PARTY WHICH HAS INCURRED SUCH FEES AND
EXPENSES.
(B)
IF:
(I)
(X) PARENT OR PURCHASER TERMINATES THIS
AGREEMENT PURSUANT TO SECTION 8.1(C), 8.1(I) OR 8.1(K), OR THE COMPANY
TERMINATES THIS AGREEMENT PURSUANT TO SECTION 8.1(D), IN EITHER CASE, IN
CIRCUMSTANCES WHEN, PRIOR TO SUCH TERMINATION ANY THIRD PARTY SHALL HAVE
ACQUIRED BENEFICIAL OWNERSHIP OF 20% OR MORE OF THE OUTSTANDING SHARES OF
COMPANY COMMON STOCK (OR ANY PERSON OR GROUP WITH A SCHEDULE 13D OR 13G ON FILE
WITH THE SEC (INCLUDING THE
53
shareholders party to the Tender and Option Agreement except as expressly
permitted in that agreement) shall have acquired beneficial ownership of
additional shares of any class or series of capital stock of the Company
(including Company Common Stock), through the acquisition of stock, the
formation of a group or otherwise, which together with the shares of capital
stock of the Company previously beneficially owned by such person or group,
constitutes 20% or more of any such class or series, or shall have been granted
any option, right or warrant, conditional or otherwise, to acquire beneficial
ownership of additional shares of any class or series of capital stock of the
Company (including the Company Common Stock) which together with the shares of
capital stock of the Company previously beneficially owned by such person or
group, constitutes 20% or more of any such class or series (it being understood
that the execution of the Tender and Option Agreement by the Company
shareholders that are parties thereto and the performance of their obligations
thereunder shall not, in itself, be deemed to constitute such an acquisition of
beneficial ownership triggering this provision)) or shall have made or
consummated