OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, WITH RESPECT
TO SUCH MATTERS, WHICH THE PARTIES ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH
DOCUMENTS, EXHIBITS AND SCHEDULES.
ANY TERM OF THIS AGREEMENT MAY BE AMENDED
AND THE OBSERVANCE OF ANY TERM OF THIS AGREEMENT MAY BE WAIVED (EITHER GENERALLY
OR IN A PARTICULAR INSTANCE AND EITHER RETROACTIVELY OR PROSPECTIVELY), ONLY
WITH THE WRITTEN CONSENT OF THE COMPANY AND CIMSA.
NO WAIVER OF ANY DEFAULT
WITH RESPECT TO ANY PROVISION, CONDITION OR REQUIREMENT OF THIS AGREEMENT SHALL
BE DEEMED TO BE A CONTINUING WAIVER IN THE FUTURE OR A WAIVER OF ANY SUBSEQUENT
DEFAULT OR A WAIVER OF ANY OTHER PROVISION, CONDITION OR REQUIREMENT HEREOF, NOR
SHALL ANY DELAY OR OMISSION OF EITHER PARTY TO EXERCISE ANY RIGHT HEREUNDER IN
ANY MANNER IMPAIR THE EXERCISE OF ANY SUCH RIGHT.
16.10
SEVERABILITY. IF ONE OR MORE PROVISIONS OF THIS
AGREEMENT ARE HELD TO BE UNENFORCEABLE UNDER APPLICABLE LAW, SUCH PROVISION
SHALL BE EXCLUDED FROM THIS AGREEMENT AND THE BALANCE OF THE AGREEMENT SHALL BE
INTERPRETED AS IF SUCH PROVISION WERE SO EXCLUDED AND SHALL BE ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS.
16.11
CONFIDENTIALITY. EACH PARTY HERETO AGREES THAT, EXCEPT
WITH THE PRIOR WRITTEN PERMISSION OF THE OTHER PARTY, IT SHALL AT ALL TIMES KEEP
CONFIDENTIAL AND NOT DIVULGE, FURNISH OR MAKE ACCESSIBLE TO ANYONE ANY
CONFIDENTIAL INFORMATION, KNOWLEDGE OR DATA CONCERNING OR RELATING TO THE
BUSINESS OR FINANCIAL AFFAIRS OF THE OTHER PARTIES TO WHICH SUCH PARTY HAS BEEN
OR SHALL BECOME PRIVY BY REASON OF THIS AGREEMENT,
25
DISCUSSIONS OR NEGOTIATIONS RELATING TO THIS AGREEMENT, THE PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER OR THE OWNERSHIP OF SHARES PURCHASED HEREUNDER. THE
PROVISIONS OF THIS SECTION 7.9 SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION
FOR, THE PROVISIONS OF ANY SEPARATE NONDISCLOSURE AGREEMENT EXECUTED BY THE
PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY.
16.12
EXPENSES. EXCEPT AS EXPRESSLY SET FORTH IN THE
TRANSACTION DOCUMENTS TO THE CONTRARY, EACH PARTY SHALL PAY THE FEES AND
EXPENSES OF ITS ADVISERS, COUNSEL, ACCOUNTANTS AND OTHER EXPERTS, IF ANY, AND
ALL OTHER EXPENSES INCURRED BY SUCH PARTY INCIDENT TO THE NEGOTIATION,
PREPARATION, EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS.
THE COMPANY SHALL PAY ALL TRANSFER AGENT FEES, STAMP
TAXES AND OTHER TAXES AND DUTIES LEVIED IN CONNECTION WITH THE SALE AND ISSUANCE
OF THE PURCHASED SECURITIES.
16.13
ADJUSTMENTS IN SHARE NUMBERS AND PRICES.
IN THE EVENT
OF ANY STOCK SPLIT, SUBDIVISION, DIVIDEND OR DISTRIBUTION PAYABLE IN COMMON
SHARES (OR OTHER SECURITIES OR RIGHTS CONVERTIBLE INTO, OR ENTITLING THE HOLDER
THEREOF TO RECEIVE DIRECTLY OR INDIRECTLY COMMON SHARES), COMBINATION OR OTHER
SIMILAR RECAPITALIZATION OR EVENT OCCURRING AFTER THE DATE HEREOF AND PRIOR TO
THE CLOSING, EACH REFERENCE IN ANY TRANSACTION DOCUMENT TO A NUMBER OF COMMON
SHARES OR A PRICE PER SHARE SHALL BE AMENDED TO APPROPRIATELY ACCOUNT FOR SUCH
EVENT.
16.14
REMEDIES.
IN
ADDITION TO BEING ENTITLED TO