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					                                   Termination Fee Triggers

                                          Buyer’s First Draft

      (excerpted from ABA Model Public Company Merger Agreement (2011))

Note: The Model Public Company Merger Agreement assumes a stock-for-stock
transaction, but for purposes of our discussion we will assume an all-cash transaction.

Termination Fee and Expense Triggers:

               7.3(b) [Termination Fees.] The Company agrees to pay Parent (or its
designees) an amount equal to $_________ (the “Termination Fee”) if this Agreement is
terminated:

                    (i)     by Parent pursuant to 7.1(e) [failure to recommend, Change
in Recommendation; violation of no-shop, etc.];

                      (ii)     by Parent or the Company pursuant to 7.1(b) [End Date] or
by Parent pursuant to 7.1(f) [Company breach] and, in either case, (x) on or before the
date of any such termination an Acquisition Proposal shall have been announced,
disclosed or otherwise communicated to the Company Board, and (y) a definitive
agreement is entered into by the Company with respect to an Acquisition Transaction or
an Acquisition Transaction is consummated within 18 months of such termination of the
Agreement;

                      (iii) by Parent or the Company pursuant to 7.1(d) [failure of
Company stockholder vote] and (x) on or before the date of the Company Stockholders’
Meeting by the Required Stockholder Vote an Acquisition Proposal shall have been
announced, disclosed or otherwise communicated to the Company Board, and (y) a
definitive Agreement is entered into by the Company with respect to an Acquisition
Transaction or an Acquisition Transaction is consummated within 18 months of such
termination of the Agreement [; or

                         (iv)     by the Company pursuant to 7.1(i) [Superior Proposal]].

                 7.3(a) [Expense Reimbursement.]

                         (i)

                       (ii)    The Company shall make a nonrefundable cash payment to
Parent, in an amount equal to the aggregate amount of all fees and expenses (including all
attorneys’ fees, accountants’ fees, financial advisory fees and filing fees) that have been
paid or that may become payable by or on behalf of Parent in connection with the
preparation and negotiation of this Agreement and otherwise in connection with the
Merger (the “Expense Reimbursement”) if this Agreement is terminated:




term fee triggers for ABA/sf-3100773 v2                                   01/30/2012 04:59 PM
                              (A) by Parent or the Company pursuant to 7.1(b) [End
        Date] and on or before the date of any such termination, an Acquisition Proposal
        shall have been publicly announced or disclosed or an Acquisition Proposal has
        otherwise been communicated to the Company Board, or

                            (B) by Parent or the Company pursuant to 7.1(d) [failure of
        Company stockholder vote]; or

                             (C) by Parent pursuant to either 7.1(e) [failure to
        recommend, Change in Recommendation, violation of no-shop, etc.] or 7.1(f)
        [Company breach]; or

                                  [(D) by the Company pursuant to 7.1(i) [Superior
Proposal]].

                7.3(e) The Parties acknowledge that the agreements contained in this
Section 7.3 are an integral part of the transactions contemplated by this Agreement and
that, without these agreements, the Parties would not enter into this Agreement. Payment
of the fees and expenses described in this Section 7.3 shall not be in lieu of liability
pursuant to Section 7.2(b).

Termination Events:

       7.1     Termination. This Agreement may be terminated prior to the Effective
Time (whether before or after adoption of this Agreement by the Company’s
stockholders):

                 7.1(a) by mutual written Consent of Parent and the Company;

                7.1(b) by Parent or the Company if the Merger shall not have been
consummated by [11:59 p.m.] [           ] Time on __________ (the “End Date”);
provided, that the right to terminate this Agreement pursuant to this 7.1(b) shall not be
available to a party whose failure to perform any material obligation required to be
performed by such Party has been a cause of, or results in, the failure of the Merger to be
consummated by the End Date;

              7.1(c) by Parent or the Company if (i) a court of competent jurisdiction or
other Governmental Body shall have issued a final and nonappealable Order, or shall
have taken any other action, having the effect of permanently restraining, enjoining or
otherwise prohibiting the Merger, or (ii) a Legal Requirement shall be in effect that
makes consummation of the Merger illegal or otherwise prohibits or prevents the
consummation of the Merger;

                7.1(d) by Parent or the Company if (i) the Company Stockholders’
Meeting (including any adjournments thereof) shall have been held and completed and
(ii) this Agreement shall not have been adopted at such meeting by the Required
Stockholder Vote; provided, however, that (A) a Party shall not be permitted to terminate
this Agreement pursuant to this 7.1(d) if the failure to obtain the Required Stockholder


term fee triggers for ABA/sf-3100773 v2                                   01/30/2012 04:59 PM
Vote is attributable to a failure on the part of such Party to perform any material
obligation required to be performed by such Party, and (B) the Company shall not be
permitted to terminate this Agreement pursuant to this 7.1(d) if the Company has not
made the payment(s) required to be made to Parent pursuant to 7.3(a)(ii) and, if
applicable, pursuant to 7.3(b);

                7.1(e) by Parent (at any time prior to the adoption of this Agreement by
the Required Stockholder Vote) if (i) the Company Board shall have failed to recommend
that the Company’s stockholders vote to adopt this Agreement, (ii) there shall have
occurred a Change in Recommendation, (iii) the Company Board shall have approved,
endorsed or recommended any Acquisition Proposal, (iv) the Company shall have failed
to include the Board Recommendation in the Proxy Statement, (v) the Company, or any
of its Subsidiaries or any Representative of the Company or any of its Subsidiaries, shall
have violated, breached or taken any action inconsistent with any of the provisions set
forth in 4.4 or 4.6, or (vi) the Company Board or any committee thereof shall have
resolved or proposed to take any action described in clauses (i) through (v) of this
sentence;

                7.1(f) by Parent (i) if any of the Company’s representations and
warranties shall have been inaccurate as of the date of this Agreement, such that the
condition set forth in 5.1 would not be satisfied, or (ii) if (A) any of the Company’s
representations and warranties become inaccurate as of a date subsequent to the date of
this Agreement (as if made on such subsequent date), such that the condition set forth in
5.1 would not be satisfied if the condition were then being tested, and (B) such
inaccuracy, if capable of cure, has not been cured by the Company within 10 Business
Days after its receipt of written notice thereof, or (iii) if any of the Company’s covenants
contained in this Agreement shall have been breached, such that the condition set forth in
5.2 would not be satisfied;

                 7.1(g) by the Company (i) if any of Parent’s representations and
warranties shall have been inaccurate as of the date of this Agreement, such that the
condition set forth in 6.1 would not be satisfied, or (ii) if (A) any of Parent’s
representations and warranties shall have become inaccurate as of a date subsequent to
the date of this Agreement (as if made on such subsequent date), such that the condition
set forth in 6.1 would not be satisfied if the condition were then being tested, and
(B) such inaccuracy, if capable of cure, has not been cured by Parent within 10 Business
Days after its receipt of written notice thereof, or (iii) if any of Parent’s covenants
contained in this Agreement shall have been breached such that the condition set forth in
6.2 would not be satisfied; or

            7.1(h) by Parent if, since the date of this Agreement, there shall have been
a Company Material Adverse Effect [; or

               7.1(i) by the Company prior to the obtaining of the Required Stockholder
Vote, in connection with the acceptance of a Superior Proposal in accordance with
Section 4.6 [no-shop]. if (i) such Superior Proposal shall not have resulted from any
breach of Section 4.6, (ii) the Board of Directors of the Company, after satisfying all of


term fee triggers for ABA/sf-3100773 v2                                  01/30/2012 04:59 PM
the requirements set forth in 4.6, shall have authorized the Company to enter into a
binding written definitive acquisition agreement providing for the consummation of a
transaction constituting a Superior Proposal (the “Specified Agreement”); and (iii) the
Company shall pay the Termination Fee immediately prior to, and enter into the
Specified Agreement concurrently with, the termination of this Agreement pursuant
hereto].

        7.2             Effect of Termination. In the event of the termination of this
Agreement as provided in Section 7.1, this Agreement shall be of no further force or
effect; provided, however, that (a) this Section 7.2, Section 7.3 and Article 8 shall survive
the termination of this Agreement and shall remain in full force and effect, and (b) the
termination of this Agreement shall not relieve any Party from any liability for fraud or
any material inaccuracy in or breach of any representation or any material breach of any
warranty, covenant or other provision contained in this Agreement.

Other Defined Terms:

        “Acquisition Proposal” means any unsolicited bonafide written offer, proposal,
inquiry or indication of interest (other than an offer, proposal, inquiry or indication of
interest by Parent) contemplating or otherwise relating to any Acquisition Transaction.
       “Acquisition Transaction” means any transaction or series of transactions
involving:
                (a)     any merger, consolidation, share exchange, business combination,
        issuance of securities, acquisition of securities, tender offer, exchange offer or
        other similar transaction (i) in which the Company or any of its Subsidiaries is a
        constituent corporation, (ii) in which a Person or “group” (as defined in the
        Exchange Act and the rules promulgated thereunder) of Persons directly or
        indirectly acquires beneficial or record ownership of securities representing more
        than 15% of the outstanding securities of any class of voting securities of the
        Company or any of its Subsidiaries, or (iii) in which the Company or any of its
        Subsidiaries issues or sells securities representing more than 15% of the
        outstanding securities of any class of voting securities of the Company or any of
        its Subsidiaries; or
                (b)     any sale (other than sales of inventory in the ordinary course of
        business), lease (other than in the ordinary course of business), exchange, transfer
        (other than sales of inventory in the ordinary course of business), license (other
        than nonexclusive licenses in the ordinary course of business), acquisition or
        disposition of any business or businesses or assets that constitute or account for
        15% or more of the consolidated net revenues, net income or assets of the
        Company and its Subsidiaries.




term fee triggers for ABA/sf-3100773 v2                                   01/30/2012 04:59 PM

				
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