OR (B) IS REQUIRED
TO BE DISCLOSED BY LAW OR THE ORDER OF ANY GOVERNMENTAL BODY UNDER COLOR OF LAW,
PROVIDED, THAT PRIOR TO DISCLOSING ANY INFORMATION PURSUANT TO THIS CLAUSE (B),
SUCH SELLER PARTY SHALL, IF POSSIBLE, GIVE PRIOR WRITTEN NOTICE THEREOF TO BUYER
AND PROVIDE BUYER WITH THE OPPORTUNITY TO CONTEST THAT DISCLOSURE.
(B)
BECAUSE OF (I) THE DIFFICULTY OF MEASURING ECONOMIC LOSSES AS A
RESULT OF THE BREACH OF THE COVENANTS IN SECTION 10.3(A) AND (II) THE IMMEDIATE
AND IRREPARABLE DAMAGE THAT WOULD BE CAUSED TO BUYER FOR WHICH IT WOULD HAVE NO
OTHER ADEQUATE REMEDY, IN THE EVENT OF A BREACH OR THREATENED BREACH BY SELLER
PARTIES OF THE PROVISIONS OF THIS SECTION 10.3 WITH RESPECT TO ANY CONFIDENTIAL
INFORMATION, BUYER SHALL BE ENTITLED TO AN INJUNCTION RESTRAINING THE SELLER
PARTIES FROM DISCLOSING, IN WHOLE OR IN PART, THAT CONFIDENTIAL INFORMATION.
NOTHING HEREIN SHALL BE CONSTRUED AS PROHIBITING BUYER FROM PURSUING ANY OTHER
AVAILABLE REMEDY FOR SUCH BREACH OR THREATENED BREACH, INCLUDING THE RECOVERY OF
DAMAGES.
SECTION 10.4
EXPENSES.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, BUYER
AND THE SELLER PARTIES SHALL PAY THEIR OWN RESPECTIVE FEES AND EXPENSES INCURRED
IN CONNECTION WITH THE NEGOTIATION, PREPARATION AND EXECUTION OF THIS AGREEMENT
(INCLUDING THE EXHIBITS AND SCHEDULES HERETO) AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN, INCLUDING ALL LEGAL, ACCOUNTING,
TAX, BROKERS' AND OTHER ADVISORS' FEES AND EXPENSES, IT BEING UNDERSTOOD THAT
SUCH EXPENSES SHALL BE PAID ON BEHALF OF THE SELLER PARTIES BY SMITH MARITIME AT
OR PRIOR TO THE CLOSING.
NOTWITHSTANDING THE FOREGOING, (1) EACH OF BUYER, ON
THE ONE-HAND, AND THE SELLER PARTIES, ON THE OTHER HAND, SHALL PAY ONE-HALF OF
THE FILING FEE UNDER THE HSR ACT AND (2) BUYER SHALL PAY ONE-HALF OF THE COST
INCURRED BY THE SUBJECT COMPANIES FOR OBTAINING THE FINANCIAL STATEMENTS
CONTEMPLATED BY SECTION 6.14, PROVIDED THAT IF THIS AGREEMENT IS TERMINATED AND
ANY OF THE SUBJECT COMPANIES OR THE SELLER PARTIES ENGAGE IN ACTIVITY DESCRIBED
IN SECTION 6.1 WITHIN TWO YEARS FROM THE DATE OF THIS AGREEMENT, THEN THE SELLER
PARTIES SHALL REIMBURSE BUYER FOR ANY AND ALL OF SUCH COSTS; PROVIDED FURTHER
THAT THE FOREGOING PROVISO SHALL NOT APPLY TO ANY MERGER, CONSOLIDATION, SHARE
EXCHANGE OR OTHER BUSINESS COMBINATION AMONG SMITH MARITIME (INCLUDING ONE OR
MORE OF SMITH MARITIME'S WHOLLY OWNED SUBSIDIARIES AS OF THE DATE OF THIS
AGREEMENT) AND GO BIG.
SECTION 10.5
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING ALL SCHEDULES AND
EXHIBITS HERETO, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND CONSTITUTES (ALONG WITH THE SCHEDULES, EXHIBITS,
AND OTHER DOCUMENTS DELIVERED PURSUANT TO THIS AGREEMENT) A COMPLETE AND
EXCLUSIVE STATEMENT OF THE TERMS OF THE AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO ITS SUBJECT MATTER AND THERE ARE NO TERMS, CONDITIONS,
REPRESENTATIONS, WARRANTIES, OR COVENANTS OTHER THAN THOSE CONTAINED IN THIS
AGREEMENT (ALONG
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WITH THE SCHEDULES, EXHIBITS, AND OTHER DOCUMENTS DELIVERED PURSUANT TO THIS
AGREEMENT).
THIS AGREEMENT MAY NOT BE MODIFIED, AMENDED OR TERMINATED