Common use of Liquidation Damages Clause in Contracts

Liquidation Damages. Selling Shareholder and Placement Agent both acknowledge that it would be extremely impractical and difficult to ascertain the actual damages to be suffered by the Selling Shareholder if Placement Agent is found by an arbitrator or a court of competent jurisdiction to have breached any of the representations, warranties and covenants contained in Section 9 of this Agreement. Accordingly, should a breach of the representations of Section _____ be proven and Placement Agent found liable for said breach, Selling Shareholder and Placement Agent hereby agree that the damages shall be limited to an amount equal to the Cash Placement Fee received by Placement Agent pursuant to Section 3.4 of this Agreement plus the return to the Selling Shareholder of the Placement Agent Units received by Placement Agent pursuant to Section 3.4 of this Agreement (or, to the extent that the Placement Agent Units have already been sold by Placement Agent, the value, as defined below, of the Placement Agent Units), inclusive of all attorney's fees and cost of court. For purposes hereof, the value of the Placement Agent Common Stock shall be deemed to equal the lesser of (i) the aggregate share price of any Placement Agent Common Stock issued to Placement Agent or (ii) the market value of such Placement Agent Common Stock on the date that such shares were sold by Placement Agent, and in either case, the Placement Agent may return such Placement Agent Common Stock to the Selling Shareholder in lieu of any payment, as to the value of such Placement Agent Common Stock, for damages pursuant to this section. For purposes hereof, the value of each Warrant issued to Placement Agent which has been exercised by Placement Agent shall be the difference of (i) the market value of

Liquidation Damages. Selling Shareholder Company and Placement Agent both acknowledge that it would be extremely impractical and difficult to ascertain the actual damages to be suffered by the Selling Shareholder Company if Placement Agent is found by an arbitrator or a court of competent jurisdiction to have breached any of the representations, warranties and covenants contained in Section 9 13 of this Agreement. Accordingly, should a breach of the representations of Section _____ 13 be proven and Placement Agent found liable for said breach, Selling Shareholder Company and Placement Agent hereby agree that the damages shall be limited to an amount equal to the Cash Placement Fee received by Placement Agent pursuant to Section 3.4 of this Agreement plus the return to the Selling Shareholder Company of the Placement Agent Units Securities received by Placement Agent pursuant to Section 3.4 of this Agreement (or, to the extent that the Placement Agent Units Securities have already been sold by Placement Agent, the value, as defined below, of the Placement Agent UnitsSecurities), inclusive of all attorney's fees and cost of court. For purposes hereof, the value of the Placement Agent Common Stock shall be deemed to equal the lesser of (i) the aggregate share price Share Price of any Placement Agent Common Stock issued to Placement Agent or (ii) the market value of such Placement Agent Common Stock on the date that such shares were sold by Placement Agent, and in either case, the Placement Agent may return such Placement Agent Common Stock to the Selling Shareholder Company in lieu of any payment, as to the value of such Placement Agent Common StockSecurities, for damages pursuant to this section. For purposes Capstone Partners, L.C. 10.9 - 11 Copywrite 2000 hereof, the value of each Warrant issued to Placement Agent which has been exercised by Placement Agent shall be the difference of (i) the market value ofof the Common Stock received upon such exercise on the date that such shares were sold by Agent, minus (ii) the Exercise Price of such Warrant. This provision is not to be construed as a penalty, but as full liquidated damages under Georgia law.