Common use of Effect of Termination; Liquidated Damages Clause in Contracts

Effect of Termination; Liquidated Damages. (a) In the event of termination of this Agreement by either Parent or the Company as provided in Section 8.1 of this Agreement, this Agreement shall forthwith become void and have no effect except that (i) Sections 8.1, 8.2, 8.5 and Article IX of this Agreement shall survive any termination of this Agreement and (ii) subject to Section 8.2(b) of this Agreement, in the event that such termination is effected pursuant to Sections 8.1(e) or 8.1(f) of this Agreement, the non-defaulting Party may pursue any remedy available at law or in equity to enforce its rights and shall be paid by the defaulting Party for all damages, costs and expenses, including without limitation legal, accounting, investment banking and printing expenses, incurred or suffered by the non-defaulting Party in connection herewith or in the enforcement of its rights hereunder. (b) In the event that the Company terminates this Agreement in accordance with Sections 8.1(e) or 8.1(f) of this Agreement, Parent agrees that it would be extremely difficult, if not impossible, to ascertain the actual amount of harm which Company will have suffered. Therefore, not by way of damage or penalty, but as a reasonable estimation of the potential harm Company may have incurred, Parent agrees that in the event that the Company terminates this Agreement in accordance with Sections 8.1(e) or 8.1(f) of this Agreement, Parent shall pay to Company fifty percent (50%) of the Maximum Amount as liquidated damages. Such payment, which shall be in lieu of any other claim for monetary damages which the Company may have hereunder, shall be paid by Parent to Company within five (5) Business Days after the date on which Parent acknowledges that the Company’s termination was effected in accordance with Sections 8.1(e) or 8.1(f) of this Agreement or, if no such acknowledgment is made, within five (5) Business Days after the date on which a final, non-appealable order is issued by a court of competent jurisdiction to the effect that the Company’s termination was effected in accordance with Sections 8.1(e) or 8.1(f) of this Agreement.

Effect of Termination; Liquidated Damages. (a) In the event of termination of this Agreement by either Parent or the Company as provided in accordance with Section 8.1 of this Agreement8.1, this Agreement shall forthwith become void be of no further force or effect, and have no effect except that (i) Sections 8.1there shall be no liability or obligation on the part of Company or any Significant Shareholder, 8.2or their respective officers, 8.5 and Article IX directors or shareholders, under this Agreement (whether for any breaches of any of the provisions of this Agreement prior to the termination hereof or otherwise), except to the extent that such liability results from the breach (prior to the time of such termination) by either such party of any of its covenants, agreements representations, or warranties set forth in this Agreement and (ii) there shall be no liability or obligation on the part of Purchaser or Merger Sub, or their respective officers, directors or shareholders, under this Agreement (whether for any breaches of any of the provisions of this Agreement prior to the termination hereof or otherwise), except to the extent expressly provided in Section 8.2(b); provided, however, that the provisions of Sections 10.1 and 10.7 and the Confidentiality Agreement shall remain in full force and effect and survive any termination of this Agreement and (ii) subject to Section 8.2(b) of this Agreement, in the event that such termination is effected pursuant to Sections 8.1(e) or 8.1(f) of this Agreement, the non-defaulting Party may pursue any remedy available at law or in equity to enforce its rights and shall be paid by the defaulting Party for all damages, costs and expenses, including without limitation legal, accounting, investment banking and printing expenses, incurred or suffered by the non-defaulting Party in connection herewith or in the enforcement of its rights hereunderaccordance with their respective terms. (b) In Notwithstanding anything contained in this Agreement to the event that contrary, if this Agreement shall be terminated by the Company terminates in accordance with Section 8.1(d), and at the time of such termination referred to in clause (x) above, (i) the Company and the Significant Shareholder are then willing and able to consummate the Closing, (ii) the conditions set forth in Sections 7.1 and 7.2 have been and remain satisfied (including if the Closing were assumed to have occurred at such time), or are able to be satisfied with deliveries by the Company and the Significant Shareholder at the Closing (including if the Closing were assumed to have occurred at such time), and (iii) the Purchaser shall have failed to consummate the Closing, then Purchaser shall pay, or cause to be paid, $1,625,000 (the “Purchaser Termination Fee”) in immediately available funds to the Company in accordance with written payment instructions executed by the Company, no later than the tenth (10th) Business Day after the Purchaser’s receipt of such written instructions, and such payment shall be the sole and exclusive remedy of the Company, the holders of Company Common Stock and Company Options, including the Significant Shareholder, and the Holders’ Agent against the Purchaser, Merger Sub and their respective former, current and future direct or indirect equity holders, controlling Persons, stockholders, directors, officers, employees, agents, Affiliates, or assignees (collectively, the “Purchaser Parties”) with respect to this Agreement. The parties expressly acknowledge and agree that (i) in light of the difficulty of accurately determining actual damages upon the termination of this Agreement in accordance with Sections 8.1(eSection 8.1(d) or 8.1(fin circumstances where the Purchaser Termination Fee is payable in accordance with this Section 8.2(b), the right to payment of the Purchaser Termination Fee under this Section 8.2(b) constitutes a reasonable estimate of the damages that will be suffered by reason of any such termination and (ii) the agreements contained in this Section 8.2(b) are an integral part of the transactions contemplated by this Agreement, Parent agrees that it and that, without these agreements, the other parties hereto would be extremely difficult, if not impossible, to ascertain the actual amount of harm which Company will have sufferedenter into this Agreement. Therefore, not by way of damage or penalty, but as a reasonable estimation Upon payment of the potential harm Company may have incurred, Parent agrees that in the event that the Company terminates this Agreement Purchaser Termination Fee in accordance with Sections 8.1(ethis Section 8.2(b), (i) no Person shall have any rights or 8.1(f) of this Agreement, Parent shall pay to Company fifty percent (50%) claims against any of the Maximum Amount as liquidated damages. Such paymentPurchaser Parties under this Agreement (including this Section 8.2(b)), which whether at law or equity, in contract, in tort or otherwise, and (ii) none of the Purchaser Parties shall be in lieu of have any other claim for monetary damages which the Company may have hereunder, shall be paid by Parent further liability or obligation relating to Company within five (5) Business Days after the date on which Parent acknowledges that the Company’s termination was effected in accordance with Sections 8.1(e) or 8.1(f) arising out of this Agreement or, if no such acknowledgment is made, within five (5) Business Days after or the date on which a final, non-appealable order is issued by a court of competent jurisdiction to the effect that the Company’s termination was effected in accordance with Sections 8.1(e) or 8.1(f) of this Agreementtransactions contemplated hereby.

Effect of Termination; Liquidated Damages. (a) In the event of termination of this Agreement by either Parent or the Company as provided in Section 8.1 of this Agreement8.1, this Agreement shall forthwith become void and have no effect except that (i) Sections 8.1, 8.2, 8.5 and Article IX of this Agreement shall survive any termination of this Agreement and (ii) subject to Section 8.2(b) of this Agreement), in the event that such termination is effected pursuant to Sections 8.1(e) or 8.1(f) of this Agreement), the non-defaulting Party party may pursue any remedy available at law or in equity to enforce its rights and shall be paid by the defaulting Party party for all damages, costs and expenses, including without limitation legal, accounting, investment banking and printing expenses, incurred or suffered by the non-defaulting Party party in connection herewith or in the enforcement of its rights hereunder. (b) In the event that the Company terminates this Agreement in accordance with Sections 8.1(e) or 8.1(f) of this Agreement), Parent agrees that it would be extremely difficult, if not impossible, to ascertain the actual amount of harm which Company will have suffered. Therefore, not by way of damage or penalty, but as a reasonable estimation of the potential harm Company may have incurred, Parent agrees that in the event that the Company terminates this Agreement in accordance with Sections 8.1(e) or 8.1(f) of this Agreement), Parent shall pay to Company fifty percent (50%) of the Maximum Amount (as defined in Section 8.5) as liquidated damages. Such payment, which shall be in lieu of any other claim for monetary damages which the Company may have hereunder, shall be paid by Parent to Company within five (5) Business Days business days after the date on which Parent acknowledges that the Company’s termination was effected in accordance with Sections 8.1(e) or 8.1(f) of this Agreement or, if no such acknowledgment is made, within five (5) Business Days business days after the date on which a final, non-appealable order is issued by a court of competent jurisdiction to the effect that the Company’s termination was effected in accordance with Sections 8.1(e) or 8.1(f) of this Agreement).