Common use of Termination and Effect Clause in Contracts

Termination and Effect. (a) This Agreement may be terminated at any time prior to Closing, whether before or after approval of the matters presented in connection with the transactions contemplated by this Agreement by the stockholders of the Company: (i) by mutual consent of the Company and the Investor; (ii) by either the Company or the Investor if there has been a material breach of any representation, warranty, covenant or agreement on the part of the other set forth in this Agreement, which breach has not been cured within five (5) business days following receipt by the breaching party of notice of such breach, or if any permanent injunction or other order of a court or other competent authority preventing the consummation of the transactions contemplated by this Agreement shall have become final and non-appealable; (iii) by either the Company or the Investor, so long as such party has not materially breached its obligations hereunder, if the Closing has not occurred on or before March 31, 2002; (iv) by the Investor in the event that a Triggering Event has occurred under Section 6.11(f); or (v) by either the Company or the Investor if any required approval of the stockholders of the Company shall not have been obtained by reason of (i) the failure to obtain the requisite vote upon a vote held at a special meeting of stockholders duly called or at any adjournment thereof, or (ii) the failure to obtain a quorum. (b) In the event of termination of this Agreement pursuant to Section 6.12(a), the transactions contemplated hereby shall be deemed abandoned and this Agreement shall immediately become void, without liability on the part of any party hereto, except as provided in Sections 6.4, 6.8, 6.10, 6.11(f) and 6.12(c). (c) If the Investor shall have terminated this Agreement pursuant to Section 6.12(a)(ii) as a result of the breach by the Company of its obligations under Section 6.11, then in addition to any other rights and remedies of the Investor under the Agreement at law or equity, the Company shall be obligated to pay the Investor, as liquidated damages and not as a penalty, $1,500,000 in immediately available funds not later than two (2) business days after this Agreement is terminated. The Company and the Investor acknowledge and agree that (i) the actual harm suffered by the Investor in the event of any breach by the Company of Section 6.11 would be difficult to accurately ascertain and (ii) the foregoing amount is a reasonable estimate of the actual damages that the Investor would suffer in the event of such a breach.