OCCUR ON OR PRIOR TO SUCH DATE
AND SUCH ACTION OR FAILURE TO ACT CONSTITUTES A BREACH OF THIS AGREEMENT;
(C)
BY EITHER SELLER OR BUYER, IF A GOVERNMENTAL OR REGULATORY
AUTHORITY SHALL HAVE ENACTED, ISSUED, PROMULGATED, ENFORCED OR ENTERED ANY LAW
OR ORDER WHICH IS THEN IN EFFECT AND HAS THE EFFECT OF MAKING THE TRANSACTIONS
CONTEMPLATED HEREBY ILLEGAL OR OTHERWISE PROHIBITING CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY, WHICH LAW OR ORDER IS FINAL AND
NON-APPEALABLE; OR
(D)
BY EITHER SELLER OR BUYER IN THE EVENT OF THE MATERIAL BREACH BY
THE OTHER PARTY OF ANY OF THE OTHER PARTY'S AGREEMENTS, REPRESENTATIONS OR
WARRANTIES CONTAINED HEREIN THAT REMAINS UNCURED FOR A PERIOD OF 15 DAYS AFTER
WRITTEN NOTICE AND DEMAND FOR CURE THEREOF BY THE NON-BREACHING PARTY, UNLESS
SUCH BREACH IS NOT CAPABLE OF CURE IN WHICH EVENT THE NON-BREACHING PARTY MAY
TERMINATE IMMEDIATELY.
SECTION 12.02
PROCEDURE UPON TERMINATION.
In the event of termination and abandonment under Section 12.01 hereof, written
notice thereof shall forthwith be given to the other party and the transactions
contemplated by this Agreement shall be terminated and abandoned, without
further action by the parties hereto.
If the transactions contemplated by this
Agreement are terminated and/or abandoned as provided herein:
(A)
ALL CONFIDENTIAL INFORMATION RECEIVED BY ANY PARTY HERETO WITH
RESPECT TO THE BUSINESS OF ANY OTHER PARTY OR ITS AFFILIATES SHALL BE TREATED IN
ACCORDANCE WITH SECTION 13.01; AND
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
45
(B)
NO PARTY HERETO AND NONE OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
STOCKHOLDERS, AFFILIATES OR CONTROLLING PERSONS SHALL HAVE ANY FURTHER LIABILITY
OR OBLIGATION TO ANY OTHER PARTY TO THIS AGREEMENT EXCEPT AS STATED IN
SUBPARAGRAPHS (A) AND (B) OF THIS SECTION 12.02, EXCEPT THAT (I) NOTHING IN THIS
SECTION 12.02 SHALL PREJUDICE ANY RIGHTS, CLAIMS, OR CAUSES OF ACTION THAT MAY
HAVE ACCRUED HEREUNDER OR WITH RESPECT HERETO PRIOR TO THE DATE OF SUCH
TERMINATION, (II) NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM LIABILITY FOR ITS
WILLFUL BREACH OF THIS AGREEMENT AND (II) THE PROVISIONS OF ARTICLE XIII SHALL
SURVIVE ANY TERMINATION OF THIS AGREEMENT.
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.01
CONFIDENTIALITY.
Each party agrees that it will treat in confidence all documents, materials and
other information which it shall have obtained regarding the other party during
the course of the negotiations leading to the consummation of the transactions
contemplated hereby (whether obtained before or after the date of this
Agreement), the investigation provided for herein and the preparation of this
Agreement and other related documents, and, if the transactions contemplated
hereby are not consummated, each party will return to the other party or destroy
all copies of nonpublic documents and materials which have been furnished in
connection therewith.
Such documents, materials and information shall not be
communicated to any third party (other than,