7. TIMING OF CLOSING
The parties agree to act with all deliberate speed to fulfill the conditions to the Closing set forth in Section 6 hereof, and to use all reasonable commercial efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable Closing.
8. TERMINATION OF THE AGREEMENT
8.1 This Agreement may be terminated before the Closing as follows:
(a) at the election of the Purchaser or the Company on or after 60 days after the date hereof, if the Closing shall not have occurred on or before such date unless such date is extended by the mutual written consent of the Company and the Purchaser, provided that the party seeking termination is not in material default of any of its obligations hereunder, and the right to terminate this Agreement pursuant to this Section 8.1 shall not be available to the party seeking termination if its breach of any provision of this Agreement has been the cause of, or resulted, directly or indirectly, in the failure of the Closing to be consummated by 60 days after the date hereof.
(b) by mutual written consent of Company and the Purchaser as evidenced in writing signed by each of the Company and the Purchaser.
(c) by the Purchaser in the event of any material breach or material violation of any representation or warranty, covenant or agreement contained herein by the Company that is not cured or curable within ten (10) Business Days following the Companys receipt of written notice of same.
(d) by the Company in the event of any material breach or violation of any representation or warranty, covenant or agreement contained herein by the Purchaser with respect to the Purchaser that is not cured or curable within ten (10) Business Days following the Purchasers receipt of written notice of same.
8.2 The date of termination of this Agreement pursuant to this Section 8 hereof shall be referred to as“ Termination Date”. In the event of termination by the Company and/or the Purchaser pursuant to this Section 8 hereof, written notice thereof shall forthwith be given to the other party and this Agreement shall terminate.
8.3 In the event that this Agreement is validly terminated pursuant to Section 8, each of the parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to the Company or the Purchaser; provided that no such termination shall relieve any party hereto from liability for any breach of this Agreement.
9. CONFIDENTIALITY
9.1 No Disclosure
Except as otherwise provided hereunder, no party shall disclose the terms of this Agreement to any third party without first obtaining the written approval of the other party.
9.2 Permitted Disclosures
Notwithstanding the foregoing, any party may disclose any terms of this Agreement to its current or bona fide prospective investors, employees, investment bankers, lenders, accountants and attorneys, in each case only where such persons or entities are subject to appropriate nondisclosure obligation.
9.3 Legally Compelled Disclosure
Notwithstanding anything to the contrary in this Agreement, the Company shall be permitted to disclose this Agreement and the material terms contemplated hereby to the extent required by Law or regulation, including, without limitation, the rules and regulations of the SEC.
9.4 Other Information
The provisions of this Section 9 shall be in addition to, and not in substitution for, the provisions of any separate nondisclosure agreement executed by any of the parties hereto with respect to the transactions contemplated hereby.
10. NOTICES
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next Business Day, (c) five (5) days after having been transmitted by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after delivery by an internationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on Schedule 1, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 10.
11. FORCE MAJEUER
11.1 The events of force majeure referred to herein shall mean all objective events that are unforeseeable by either party at the time when this Agreement was signed, and which cannot be avoided or overcome and which events prevent total or partial performance by any party of all or part of its obligation hereunder. Such events shall include earthquakes, typhoons, flood, fire, war, failures of international or domestic transportation, terrorist acts, epidemics, strikes, action or inaction of any government that was not reasonably foreseeable at the time this Agreement was signed.
11.2 The party affected by any event of force majeure shall provide to other party to this Agreement relevant documents notarized by a notarization agency within fifteen (15) days upon occurrence of such an event, evidencing the occurrence of such event and specifying which provision under this Agreement such party is unable to perform or with respect to which it requires an extension.
11.3 If either party is unable to perform this Agreement due to any event of force majeure, such party shall not be deemed to be in default; notwithstanding the forgoing, such party shall use its best effort to minimize the damages caused by the event of force majeure to the other party.
