QUANTITIES OF
PRODUCTS IN INVENTORY TO CUSTOMERS, AFTER THE TERMINATION DATE, AS PERMITTED
UNDER THIS AGREEMENT BUT SHALL IN ALL OTHER RESPECTS CEASE TO HOLD ITSELF OUT AS
A DISTRIBUTOR OF HOEFER.
(B)
AB SHALL CONTINUE TO BE RESPONSIBLE FOR THE SUPPORT OF CUSTOMERS OF THE
PRODUCTS SOLD BY AB AND HOEFER SHALL CONTINUE TO PROVIDE BACK-UP TECHNICAL
SUPPORT IN ACCORDANCE WITH SECTION 10.1(E).
(C)
AB MAY OFFER FOR RETURN TO HOEFER ANY INVENTORY OF THE PRODUCTS HELD BY IT,
PROVIDED THAT HOEFER MAY, AT ITS SOLE DISCRETION, AGREE OR NOT AGREE TO
REPURCHASE SUCH INVENTORY.
(D)
THE RIGHTS AND OBLIGATIONS OF THE PARTIES SET FORTH IN SECTIONS 2.2, 12,
13, 14, 15, 16, 17, 18 AND 19 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
(E)
LIQUIDATED DAMAGES.
(I)
TO THE EXTENT THAT THIS AGREEMENT IS
TERMINATED AT ANY TIME PRIOR TO THE END OF CONTRACT YEAR THREE BY HOEFER
PURSUANT TO SECTION 17.2 ABOVE, AB SHALL, WITHIN TEN
25
(10) business days following the effective date of the termination (and subject
to reimbursement pursuant to Section 17.3(e)(iv)), pay to Hoefer by wire
transfer in immediately available funds to accounts as Hoefer shall specify to
AB in writing, an amount (the "Termination Amount") equal to:
[OMITTED
MATERIAL], where
(A) = AGGREGATE PURCHASE PRICE FOR PRODUCTS PURCHASED BY AB AFTER THE EFFECTIVE
DATE AND PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION;
(B) = AGGREGATE SALES BY HOEFER OF EQUIVALENT PRODUCTS AFTER THE EFFECTIVE DATE
AND PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION (THIS CALCULATION TO BE
BASED ON UNITS OF EQUIVALENT PRODUCTS SOLD BY HOEFER DURING SUCH PERIOD
(EXCLUDING ANY AND ALL RETURNED UNITS) MULTIPLIED BY THE TRANSFER PRICE
APPLICABLE TO THE CORRESPONDING EQUIVALENT PRODUCTS IN EFFECT UNDER THIS
AGREEMENT DURING SUCH PERIOD)
(C) =
THE AMOUNT EQUAL TO [OMITTED MATERIAL] MULTIPLIED BY THE NUMBER OF
BUSINESS DAYS BETWEEN SEPTEMBER 30, 2003 AND THE EFFECTIVE DATE.
(II)
AB ACKNOWLEDGES THAT HOEFER WILL SUFFER A
MATERIAL ADVERSE IMPACT ON ITS BUSINESS IF THIS AGREEMENT IS TERMINATED PRIOR TO
THE EXPIRATION OF CONTRACT YEAR THREE, AND THAT THE DAMAGES ASSOCIATED WITH
RESPECT TO CONTRACT YEAR ONE, CONTRACT YEAR TWO AND CONTRACT YEAR THREE MAY NOT
BE SUSCEPTIBLE OF PRECISE DETERMINATION.
AB ACKNOWLEDGES THAT THE PAYMENT OF
THE TERMINATION AMOUNT CONTEMPLATED BY THIS SECTION 17.3(E) IS A REASONABLE
APPROXIMATION OF THE DAMAGES WITH RESPECT TO CONTRACT YEAR ONE, CONTRACT YEAR
TWO AND CONTRACT YEAR THREE AND WILL BE DEEMED TO BE LIQUIDATED DAMAGES AND NOT
A PENALTY FOR SUCH YEARS.
(III)
THE REMEDY SET FORTH IN THIS SECTION 17.3(E)
SHALL BE THE EXCLUSIVE REMEDY OF HOEFER WITH RESPECT TO DAMAGES ASSOCIATED WITH
AB'S OBLIGATIONS UNDER SECTIONS 6 AND 7 HEREOF AND ANY BREACH THEREOF, AND SUCH
REMEDY SHALL BE IN LIEU OF ANY OTHER DAMAGES OR REMEDIES TO WHICH HOEFER MIGHT
OTHERWISE BE ENTITLED WITH RESPECT TO AB'S BREACH OF SECTIONS 6 AND 7.
THE
PRECEDING WILL NOT LIMIT HOEFER'S RIGHT TO COLLECT DAMAGES ARISING FROM BREACHES
BY AB OF ANY