WRITTEN NOTICE THEREOF;
(F)
BY PARENT, UPON A MATERIAL BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT ON THE PART OF THE COMPANY SET FORTH IN THIS
AGREEMENT, OR IF ANY REPRESENTATION OR WARRANTY OF THE COMPANY SHALL HAVE BECOME
UNTRUE, IN EITHER CASE SUCH THAT THE CONDITIONS SET FORTH IN ARTICLE VI WOULD
NOT BE SATISFIED AS OF THE TIME OF SUCH BREACH OR AS OF THE TIME SUCH
REPRESENTATION OR WARRANTY SHALL HAVE BECOME UNTRUE, PROVIDED, THAT IF SUCH
BREACH IS CURABLE BY THE COMPANY PRIOR TO THE CLOSING DATE, THEN PARENT MAY NOT
TERMINATE THIS AGREEMENT UNDER THIS SECTION 8.1(F) FOR THIRTY (30) DAYS AFTER
DELIVERY OF WRITTEN NOTICE FROM PARENT TO THE COMPANY OF SUCH BREACH, PROVIDED
THE COMPANY CONTINUES TO EXERCISE COMMERCIALLY REASONABLE EFFORTS TO CURE SUCH
BREACH (IT BEING UNDERSTOOD THAT PARENT MAY NOT TERMINATE THIS AGREEMENT
PURSUANT TO THIS SECTION 8.1(F) IF IT SHALL HAVE MATERIALLY BREACHED THIS
AGREEMENT OR IF SUCH BREACH BY THE COMPANY IS CURED DURING SUCH THIRTY (30) DAY
PERIOD);
(G)
BY EITHER PARENT OR THE COMPANY, IF, AT THE PARENT STOCKHOLDERS'
MEETING , INCLUDING ANY ADJOURNMENTS THEREOF), THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY SHALL FAIL TO BE APPROVED AND ADOPTED BY THE
AFFIRMATIVE VOTE OF THE HOLDERS OF PARENT COMMON STOCK REQUIRED UNDER PARENT'S
CERTIFICATE OF INCORPORATION, OR THE HOLDERS OF 20% OR MORE OF THE NUMBER OF
SHARES OF PARENT COMMON STOCK ISSUED IN PARENT'S INITIAL PUBLIC OFFERING AND
OUTSTANDING AS OF THE DATE OF THE RECORD DATE OF THE PARENT STOCKHOLDERS'
MEETING EXERCISE THEIR RIGHTS TO CONVERT THE SHARES OF PARENT COMMON STOCK HELD
BY THEM INTO CASH IN ACCORDANCE WITH PARENT'S CERTIFICATE OF INCORPORATION; OR
(H)
BY EITHER PARENT OR THE COMPANY IF THE CLOSING DATE SHALL NOT HAVE
OCCURRED BY AUGUST 15, 2006.
55
8.2
NOTICE OF TERMINATION; LIMITED REMEDY.
ANY TERMINATION OF THIS
AGREEMENT UNDER SECTION 8.1 ABOVE WILL BE EFFECTIVE IMMEDIATELY UPON (OR, IF THE
TERMINATION IS PURSUANT TO SECTION 8.1(D) OR SECTION 8.1(E) AND THE PROVISO
THEREIN IS APPLICABLE, THIRTY (30) DAYS AFTER) THE DELIVERY OF WRITTEN NOTICE OF
THE TERMINATING PARTY TO THE OTHER PARTIES HERETO.
IN THE EVENT OF THE
TERMINATION OF THIS AGREEMENT AS PROVIDED IN SECTION 8.1, THIS AGREEMENT SHALL
BE OF NO FURTHER FORCE OR EFFECT AND THE MERGER SHALL BE ABANDONED, EXCEPT FOR
AND SUBJECT TO THE FOLLOWING:
(I) SECTIONS 5.8, 5.16, 8.2, 8.3, 8.4 AND ARTICLE
X (GENERAL PROVISIONS) SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
THE
SOLE REMEDY OF ANY PARTY HERETO FOR BREACH OF THIS AGREEMENT OCCURRING PRIOR TO
CLOSING BY ANY OTHER PARTY HERETO SHALL BE LIMITED TO TERMINATION OF THIS
AGREEMENT, AND NO PARTY SHALL HAVE ANY CLAIM AGAINST THE OTHER FOR DAMAGES OR
EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT OCCURRING PRIOR TO THE CLOSING;
PROVIDED, HOWEVER, THAT PARENT SHALL RETAIN THE RIGHT TO THE TERMINATION FEE ON
THE TERMS AND CONDITIONS SET FORTH IN SECTION 8.4.
NOTWITHSTANDING THE
FOREGOING, THE PARTIES MAY SUE FOR SPECIFIC PERFORMANCE.