OF THE PURCHASE PRICE) A
FEE IN THE AMOUNT OF $2,000,000, AS SELLERS' SOLE AND EXCLUSIVE REMEDY UPON
TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 8.1.5. SUCH PAYMENT SHALL BE
PAID WITHIN 10 BUSINESS DAYS FOLLOWING THE DATE OF SUCH TERMINATION.
8.3.4.
THE PARTIES
ACKNOWLEDGES THAT THE AGREEMENTS CONTAINED IN THIS SECTION 8.3 ARE AN INTEGRAL
PART OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND THAT IF THIS
AGREEMENT IS TERMINATED AS PROVIDED IN THE APPLICABLE SUB-SECTIONS OF
SECTION 8.1, THAT THE AMOUNTS PAYABLE PURSUANT TO SECTIONS 8.3.1 THROUGH 8.3.3
ARE REASONABLE FORECASTS OF THE ACTUAL DAMAGES WHICH MAY BE INCURRED BY SUCH
PARTY UNDER SUCH CIRCUMSTANCES AND CONSTITUTE LIQUIDATED DAMAGES AND NOT A
PENALTY, AND FURTHER THAT, WITHOUT THESE AGREEMENTS, THE PARTIES WOULD NOT ENTER
INTO THIS AGREEMENT.
8.3.5.
ALL PAYMENTS TO
BE MADE UNDER THIS SECTION 8.3 SHALL BE PAID IN U.S. DOLLARS BY WIRE TRANSFER IN
IMMEDIATELY AVAILABLE FUNDS TO SUCH BANK ACCOUNTS THE DETAILS OF WHICH SHALL BE
PROVIDED BY THE RELEVANT PAYEE(S) TO THE RELEVANT PAYOR UPON THE TIME OF
PAYMENT.
8.4.
NOTHING IN THIS SECTION 8 IS INTENDED TO NOR
SHALL IT DEROGATE FROM OR LIMIT THE RIGHTS AND/OR REMEDIES ANY PARTY MAY HAVE
PURSUANT TO THIS AGREEMENT, BY LAW OR EQUITY AT ANY TIME PRIOR TO TERMINATION OF
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO SEEK INJUNCTIVE
RELIEF OR SPECIFIC PERFORMANCE IN ANY COURT OF COMPETENT JURISDICTION.
9.
ESCROW FUND AND INDEMNIFICATION
9.1.
ESCROW FUND.
THE ESCROW AMOUNT SUBJECT TO
HOLDBACK SHALL BE HELD BACK BY THE PURCHASER (IF PURCHASER ELECTS TO EFFECT THE
HOLDBACK WITH RESPECT TO THE ENTIRE OR ANY PART OF THE ESCROW
AMOUNT), AND/OR DEPOSITED WITH THE ESCROW AGENT (IF PURCHASER ELECTS TO EFFECT
THE INDEMNITY ESCROW WITH RESPECT TO THE ENTIRE OR ANY PART OF THE ESCROW
AMOUNT), AS THE CASE MAY BE (SUCH ESCROW AMOUNT, TOGETHER WITH ANY INTEREST THAT
MAY BE EARNED THEREON, TO CONSTITUTE AN ESCROW FUND (THE "ESCROW FUND")) AND TO
BE GOVERNED BY THE PROVISIONS SET FORTH HEREIN.
THE ESCROW FUND SHALL BE
AVAILABLE TO COMPENSATE PURCHASER ON BEHALF OF ITSELF OR ANY OTHER INDEMNIFIED
PERSON OR SELLERS, AS THE CASE MAY BE, FOR INDEMNIFIABLE DAMAGES PURSUANT TO THE
INDEMNIFICATION OBLIGATIONS OF THE APPLICABLE INDEMNIFYING PARTY HEREUNDER.
9.2.
INDEMNIFICATION BY SELLERS.
SUBJECT TO THE
LIMITATIONS SET FORTH IN THIS SECTION 9, THE SELLERS SHALL, JOINTLY AND
SEVERALLY, INDEMNIFY AND HOLD HARMLESS PURCHASER, ITS AFFILIATES AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES, AND EACH PERSON, IF ANY,
WHO CONTROLS OR MAY CONTROL PURCHASER WITHIN THE MEANING OF THE SECURITIES ACT
FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES, REDUCTIONS IN VALUE,
COSTS AND EXPENSES, INCLUDING COSTS OF INVESTIGATION AND DEFENSE AND REASONABLE
FEES AND EXPENSES OF LAWYERS, EXPERTS AND OTHER PROFESSIONALS (COLLECTIVELY,
"INDEMNIFIABLE DAMAGES") DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM
OR IN CONNECTION WITH:
9.2.1.
ANY FAILURE OF
ANY REPRESENTATION OR WARRANTY MADE BY THE SELLERS OR THE COMPANY IN THIS
AGREEMENT OR THE DISCLOSURE SCHEDULE (INCLUDING ANY