Liquidated damages are a predetermined sum agreed upon by the parties to a contract, payable in the event of a specified breach, serving as compensation for losses that are difficult to quantify. This clause aims to provide certainty and avoid lengthy legal disputes over actual damages while discouraging breach of contract.
WAIVER OF LIQUIDATED DAMAGES AND RELEASE OF CLAIMS This Waiver of Liquidated Damages and Release of Claims (this “Waiver”) is made and is effective as of December 1, 2023, by and among The Arena Group Holdings, Inc. (the “Company”), B. Riley Principal Investments, LLC (the “Holders”) and Simplify Inventions, LLC (the “Purchaser”).
Waiver of Liquidated Damages. Without limiting any other rights or obligations owed to the Holder or any of its respective affiliates by the Company or any of its affiliates, whether pursuant to the Agreements or any other agreement between such parties, in all cases, that do not expressly relate to the rights that the Holder possesses to receive the Liquidated Damages amounts payable to it or any interest that has then accrued thereon, the Holder hereby irrevocably and unconditionally relinquishes any and all rights that the Holder possesses to receive the Liquidated Damages amounts payable to it or any interest that has accrued thereon.
If Party B breaches provision on the investment of fixed assets under Article 5 of this Agreement, the relevant liability for breach of contract shall be determined as follows: If total investment in fixed assets approved or registered (for initiation) of the Plot Project is less than [REDACTED], Party B shall, within 1 month from the date on which the liability for the breach of contract is incurred, pay a sum of liquidated damages to Party A, the amount of liquidated damages payable for such breach shall be calculated by the area of the Plot at the rate of RMB100 per square meter; If, by the milestone of the time limit for full completion of all works, investment amount of fixed assets on the Plot is less than [REDACTED], or if, by the end of the year of official production, investment in fixed assets of the Plot Project is less than [REDACTED], either case shall be deemed as breach of contract, Party B shall, within 1 month from the date on which the liability for the breach of contract is incurred, pay a sum of liquidated damages to Party A for its liability for the breach of contract in connection with such milestones, if applicable, with the amount of liquidated damages for all milestones being calculated by the following formula: Amount of Liquidated Damages = RMB200 per square meter * Area of the Plot (m2) * (1-Amount of Actually Paid Investment in Fixed Assets/Agreed Investment Amount of Fixed Assets).
If Party B breaches Article 9 of this Agreement, Party B shall pay liquidated damages to Party A within 1 month from the date on which the liability for breach of contract is incurred, and the amount of which shall be calculated according to the following formula: Amount of Liquidated Damages = RMB200 per square meter * Area of the Plot (m2) * (1-Amount of Actually Achieved Sales Income/Agreed Amount of Sales Income).
If Party B breaches either Article 14 (1) of (2) of this Agreement, Party B shall pay liquidated damages to Party A by the area of the Plot at the rate of RMB3,000 per square meter. If Party B breaches Article 14 (3) of this Agreement, Party B shall pay liquidated damages to Party A, the amount of which shall be calculated by the area of the Plot at the rate of RMB1,000 per square meter.
Liquidated Damages. You agree that if, on or after the Acceleration Date and prior to the Closing Date (as defined in the Merger Agreement), your employment is terminated by the Company for Cause or you resign without Good Reason (each as defined in your Employment Agreement, and each a “Covered Termination”), or if the Merger Agreement is terminated in accordance with its terms without the consummation of the Merger, you will pay the Company, in cash, within ten (10) days following the effective date of your Covered Termination or the date of termination of the Merger Agreement, as applicable, the after-tax amount of the Discretionary Bonus based on the Company’s customary tax withholding practices (the “Liquidated Damages”), plus any refund you receive from an applicable tax authority as a result of the requirement to pay the Liquidated Damages (any such amount, a “Tax Refund”). You acknowledge that (i) the amount of the Liquidated Damages is reasonable in proportion to the harm to be sustained by the Company if a Covered Termination occurs or the Merger Agreement is terminated, and (ii) the Liquidated Damages are not intended to constitute a penalty or punitive damages for any purposes.
The Company will have the right to offset your obligation to pay Liquidated Damages against any amounts otherwise owed to you by the Company; provided that no such offset shall result in the imposition of additional taxes or penalties to you under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). If you are obligated to pay the Liquidated Damages, you will also be obligated to pay the Company any Tax Refund if received, as soon as reasonably practicable (but no more than ten (10) days) after the date of receipt thereof (it being understood that you may receive a Tax Refund from different tax authorities at different times).
The Company’s right to the Liquidated Damages (and amounts in the escrow and any Tax Refund) will lapse on the earlier of (i) the Closing Date if a Covered Termination has not occurred and (ii) the date of a termination of your employment that is not a Covered Termination. As of that date, the escrow account may be terminated by you and all assets in the escrow account will be distributable to you (or your estate). You shall be the owner of the escrow account and its assets.
Liquidated Damages. Boeing agrees to pay Customer liquidated damages for each day of Non-Excusable Delay in excess of [*] (collectively the Non-Excusable Delay Payment Period) at a rate of [*] per day per Aircraft not to exceed an aggregate sum of [*] per Aircraft (Liquidated Damages).
In addition to the Liquidated Damages in paragraph 1, for each day of Non-Excusable Delay commencing [*] after the Scheduled Delivery, Boeing will pay Customer interest calculated as follows (Interest):
The Company acknowledges that its failure to have the Form 15c and the DTC Filing as provided herein will cause the Holder to suffer irreparable harm, and, that damages will be difficult to ascertain. Accordingly, the Parties agree that it is appropriate to include in this Agreement a provision for liquidated damages. The Parties acknowledge and agree that the liquidated damages provision set forth in this Section 2(e) represents the Parties’ good faith effort to quantify such damages and, as such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall not relieve the Company from its obligations to file and have declared effective, the 15c Documents, pursuant to the terms of this Agreement.
Where Party A fails to deliver the Rooms within the specified time not for reasons attributable to Party B, Party A shall pay Party B liquidated damages at a daily rate of 0.01% of the paid rent. If Party A still fails to deliver the Rooms on and prior to the 30th day after the specified time, Party B shall be entitled to unilaterally rescind this Contract and to claim liquidated damages from Party A equivalent to the amount of the Deposit. In the case that the liquidated damages are insufficient to cover Party B’s losses, Party A shall additionally pay Party B the balance. Upon termination of this Contract by Party B, Party A shall, within 5 days, refund the Deposit and the paid rent for the period of lease that has not been realized without interest.
WHEREAS, the persons entitled to liquidated damages (the “Liquidated Damages Holders”) pursuant to the Registration Rights Agreement allege that the Company did not fulfill the Registration Requirements set forth under the Registration Rights Agreement; WHEREAS, pursuant to Section 2(d) of the Registration Rights Agreement, in connection with the Company’s inability to fulfill the Registration Requirements, the Parties (as Liquidated Damages Holders) claim entitlement to liquidated damages in the amount set forth on Schedule C attached hereto;
Liquidated damages refer to a pre-determined amount of money specified in a contract that one party agrees to pay the other in the event of a breach of contract. They are intended to estimate the damages that would result from a specific breach as actual damages can be difficult to determine. The primary purpose of liquidated damages is to provide certainty and avoid litigation over the amount of damages due.
Use liquidated damages in scenarios where:
Liquidated damages are commonly used in construction contracts, service agreements, and leases where delays or failures in performance could lead to significant losses that are hard to quantify.
When writing liquidated damages into a contract, you should:
Specify the amount: Clearly state the pre-determined amount per day/week, or per specific failure.
Example: “The Contractor shall pay the Owner $500 per day for each day the project completion is delayed beyond the agreed completion date.”
Justify the reasonableness: Ensure the amount is a reasonable forecast of the potential loss. If it’s too punitive, it may be considered an unenforceable penalty.
Include a clear trigger: Define the events or breaches that will trigger the obligation to pay liquidated damages.
Example: “Liquidated damages shall be applicable for each instance of failure to deliver the goods by the set delivery date as agreed upon.”
Liquidated damages clauses are typically found in:
Construction Contracts: To address delays that could lead to financial losses due to late project delivery.
Service Agreements: When specific milestones or timelines are crucial to the project’s success and delays are costly.
Real Estate Leases: In cases where a tenant fails to vacate the property on time, leading to loss of rental income for the landlord.
Supply Contracts: When timely delivery of goods is critical, and delays can cause operational disruptions.
By incorporating liquidated damages into contracts, parties aim to have clear remedies and reduce the potential for acrimonious legal disputes.
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