Common use of Liability; Specific Performance Clause in Contracts

Liability; Specific Performance. (a) Each party agrees that, notwithstanding anything in this Agreement to the contrary, (i) to the extent a party has incurred losses or damages in connection with this Agreement, (A) the maximum aggregate liability of the other party for such losses or damages shall be limited to $14,500,000 and any amounts owed by such other party pursuant to Section 5.5(g), (B) in no event shall such party seek to recover any money damages in excess of such amount from the other party, and (C) the maximum liability of each Investor, directly or indirectly, shall be limited to the express obligations of such Investor under its Limited Guarantee entered into as of the date hereof with the Company (in each case, the “Limited Guarantee”), and (ii) in no event shall either party seek to recover any money damages in excess of the foregoing from the other party, any Investor or their respective former, current or future direct or indirect stockholders, members, managers, general or limited partners or Affiliates, or any former, current or future officers, directors, employees, agents or representatives of any of the foregoing in connection therewith. Upon payment of the Termination Fee by Purchaser or Company in accordance with Section 5.5, none of Purchaser, Company, nor any former, current or future direct or indirect stockholder, member, manager, general or limited partner or Affiliate of Purchaser or Company, nor any former, current or future officer, director, employee, agent or representative of any of the foregoing shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement for all losses and damages arising from or in connection with breaches of this Agreement by Purchaser or Company or otherwise relating to or arising out of this Agreement or the transactions contemplated by this Agreement and upon payment of such amount, Purchaser or Company, as the case may be, shall not have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby and in no event, whether or not this Agreement shall have been terminated, shall either party be entitled to monetary damages in excess of the amount of the $14,500,000 in the aggregate, inclusive of the Termination Fee, if applicable, for all losses and damages arising from or in connection with breaches of this Agreement by the other party or otherwise relating to or arising out of this Agreement or the transactions contemplated by this Agreement. The amount paid or payable by Purchaser to Company pursuant to Section 5.5 with respect to a termination of this Agreement pursuant to Article V, the amount paid or payable by any Investor pursuant to its Limited Guarantee with respect thereto and any other monetary damages paid or payable by Purchaser or its Affiliates to Company relating thereto, shall be reduced by the amount of damages or losses paid to shareholders of Company with respect to any litigation arising from Purchaser’s failure to accept and make payment with respect to Shares validly tendered and not withdrawn pursuant to the Offer. (b) The parties hereto agree that irreparable damage would occur in the event that (i) any of the provisions of this Agreement were not performed by Company in accordance with their specific terms or were otherwise breached or (ii) on or after the Acceptance Date, Purchaser was in breach of its obligations under this Agreement to consummate the Offer. It is accordingly agreed that Purchaser, in the case of clause (i), and Company, in the case of clause (ii), shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in addition to any other remedy to which such party is entitled at law or in equity. The parties acknowledge that, except as provided in Section 6.13(b)(ii), Company shall not be entitled to an injunction or injunctions to prevent breaches of this Agreement by Purchaser or to enforce specifically the terms and provisions of this Agreement (other than with respect to the Confidentiality Agreements for which Company shall be entitled to an injunction) and that Company’s sole and exclusive remedy with respect to any such breach shall be the remedy set forth in Sections 5.5 and 6.13.