Nautilus 2009 Annual Report Download - page 174

Indemnification payments under this Article 8 shall be paid by the Indemnifying Party without reduction for any Tax Benefits available to the
Indemnified Party. However, to the extent that the Indemnified Party recognizes Tax Benefits as a result of any Adverse Consequences, the
Indemnified Party shall pay the amount of such Tax Benefits (but not in excess of the indemnification payment or payments actually received
from the Indemnifying Party with respect to such Adverse Consequences) to the Indemnifying Party as such Tax Benefits are actually
recognized by the Indemnified Party. For this purpose, the Indemnified Party shall be deemed to recognize a tax benefit (“Tax Benefit”) with
respect to a taxable year if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year,
calculated by excluding any Tax items attributable to the Adverse Consequences from all taxable years, exceeds the Indemnified Party’s actual
cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Adverse
Consequences and the receipt of indemnification payment under this Article 8 for all taxable years (to the extent permitted by relevant Tax law
and treating such Tax items as the last items taken into account for any taxable year). All indemnification payments under this Article 8 shall be
deemed adjustments to the Purchase Price.
8.6 Liquidated Damages . Subject to the provisions of Section 8.7, if the Closing fails to occur because Nautilus exercises its right to
terminate this Agreement under Section 9.1(c), or because of Buyer’s other breach of or default under this Agreement, Buyer shall pay to
Nautilus the amount of Three Hundred Thousand Dollars ($300,000) in liquidated damages.
8.7 Exclusive Remedy . Buyer and Nautilus acknowledge and agree that the foregoing indemnification and liquidated damages provisions
in this Article 8 shall be the exclusive remedy of Buyer and Nautilus with respect to the transactions contemplated by this Agreement; provided,
however, that notwithstanding the foregoing, (a) in the event that the Closing fails to occur by reason of a breach of this Agreement by Nautilus,
Buyer shall have the right to sue for specific performance of this Agreement, and (b) in the event that Closing fails to occur by reason of a breach
of this Agreement by Buyer, Nautilus shall have the right, in lieu of receiving liquidated damages per Section 8.6 above, to sue for specific
performance of this Agreement. Buyer hereby waives any statutory, equitable, or common law rights or remedies relating to any environmental,
health or safety matters; provided, however, that in the event of a breach by Nautilus of its representations and warranties with respect to such
matters in Article 3 above, Buyer shall be entitled to the remedies available to Buyer by reason of any such breach.
ARTICLE 9 - TERMINATION
9.1 Termination of Agreement . The Parties may terminate this Agreement as provided below:
(a) Buyer and Nautilus may terminate this Agreement by mutual written consent at any time prior to the Closing;
(b) Buyer may terminate this Agreement by giving written notice to Nautilus at any time prior to the Closing (i) in the event Nautilus
has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Buyer has notified
Nautilus of the breach, and the breach has continued without cure for a
16