OF ANY REPRESENTATIONS AND WARRANTIES BUT SOLELY TO THE EXTENT SUCH
BREACH WOULD RESULT IN A FAILURE OF THE CONDITION SET FORTH IN SECTION 7(B)(I))
OR (Y) ANY INTENTIONAL BREACH OF ANY COVENANTS WHICH BREACH COULD REASONABLY BE
EXPECTED TO RESULT IN A FAILURE OF THE CONDITION SET FORTH IN SECTION 7(B)(II))
SET FORTH IN THIS AGREEMENT; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL EITHER
BUYER, GUARANTOR AND THEIR RESPECTIVE AFFILIATES BE LIABLE, AT EQUITY OR AT LAW,
FOR ANY LOSSES OR DAMAGES OF ANY KIND IN EXCESS OF $62,250,000 IN THE AGGREGATE.
(IX)
THE CONFIDENTIALITY AGREEMENT SHALL SURVIVE
ANY TERMINATION OF THIS AGREEMENT AND NOTHING IN THIS SECTION 8(C) SHALL RELIEVE
BUYERS OR SELLERS OF THEIR RESPECTIVE OBLIGATIONS UNDER THE CONFIDENTIALITY
AGREEMENT.
IF THIS AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 8(A),
THEN BUYERS AGREE THAT THE PROHIBITION IN THE CONFIDENTIALITY AGREEMENT
RESTRICTING BUYERS' ABILITY TO SOLICIT ANY EMPLOYEE OF ANY SELLER TO JOIN THE
EMPLOY OF EITHER BUYER OR ANY OF THEIR RESPECTIVE AFFILIATES OR TO HIRE ANY SUCH
EMPLOYEE SHALL BE EXTENDED TO A PERIOD OF TWO YEARS FROM THE DATE OF THIS
AGREEMENT.
(X)
IN NO EVENT SHALL A PARTY OR AN AFFILIATE
OF SUCH PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY
SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, AND ANY SUCH CLAIM, RIGHT OR
CAUSE OF ACTION FOR ANY DAMAGES THAT ARE SPECIAL, INCIDENTAL, EXEMPLARY OR
PUNITIVE IS HEREBY FULLY WAIVED, RELEASED AND FOREVER DISCHARGED.
9.
Miscellaneous.
(a)
Expenses.
Except as otherwise expressly
provided in this Agreement, Sellers, Guarantor and Buyers shall bear their own
expenses, including attorneys' fees, incurred in connection with the negotiation
and execution of this Agreement, the other Related Agreements and each other
agreement, document and instrument contemplated by this Agreement and the
consummation of the transactions contemplated hereby and thereby whether or not
the Closing occurs; it being understood that Buyers as acquiring parties shall
solely be responsible for paying the HSR Act filing fees and all other filing
and similar fees (but not legal or other advisor fees) incurred in connection
with filings under any other Competition/Investment Law.
Notwithstanding the
foregoing, in the event of any action or proceeding to interpret or enforce this
Agreement, the prevailing party in such action or proceeding (i.e., the party
who, in light of the issues contested or determined in the action or proceeding,
was more successful) shall be entitled to have and recover from the
non-prevailing party such costs and expenses (including all court costs and
reasonable attorneys' fees) as the prevailing party may incur in the pursuit or
defense thereof.
101
(b)
Entire Agreement.
This Agreement, the other
Related Agreements and the Confidentiality Agreement together in each case any
schedules, exhibits or annexes hereto or thereto, constitute the entire
agreement between the parties hereto and supersede any prior understandings,
agreements or representations (whether written or oral) by or among the parties
hereto, written or oral, to the extent they relate in any way to