AFTER CONSULTATION WITH,
BUT WITHOUT THE NECESSITY OF OBTAINING THE PRIOR APPROVAL OF, ANY INDEMNIFYING
PARTY, PROVIDED, HOWEVER, THAT SUCH SETTLEMENT OR COMPROMISE SHALL NOT, UNLESS
CONSENTED TO IN WRITING BY SUCH INDEMNIFYING PARTY, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, BE CONCLUSIVE AS TO THE LIABILITY OF SUCH INDEMNIFYING
PARTY TO THE INDEMNIFIED PARTY.
10.4
LIMITATIONS ON LIABILITY.
NO INDEMNIFICATION FOR BREACHES OF
REPRESENTATIONS, WARRANTIES AND COVENANTS FOR ALL CLAIMS UNDER SECTION 10.1(A)
AND (B) SHALL BE MADE UNLESS THE AGGREGATE AMOUNT OF LOSSES INCURRED BY THE
INDEMNIFIED PARTY EXCEEDS TEN THOUSAND DOLLARS ($10,000); PROVIDED, HOWEVER,
THAT IN THE EVENT THE LOSSES EXCEED SUCH AMOUNT, INDEMNIFICATION SHALL BE MADE
WITH RESPECT TO ALL LOSSES, AND PROVIDED HOWEVER, IN NO EVENT SHALL
INDEMNIFICATION UNDER SECTION 10.1(A) AND (B) FOR BREACHES OF REPRESENTATIONS,
WARRANTIES AND COVENANTS EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER TO
SELLER.
INDEMNIFICATION PURSUANT TO THIS ARTICLE X SHALL BE THE SOLE AND
EXCLUSIVE REMEDY FOR BREACHES OF REPRESENTATIONS AND WARRANTIES AND COVENANTS TO
BE PERFORMED PRIOR TO CLOSING.
ARTICLE XI
MISCELLANEOUS
11.1
ASSIGNMENT.
NEITHER SELLER NOR BUYER MAY ASSIGN THIS AGREEMENT, OR
ASSIGN ITS RIGHTS OR DELEGATE ITS DUTIES HEREUNDER, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE OTHER PARTY HERETO.
THIS AGREEMENT WILL BE BINDING UPON, INURE
TO THE BENEFIT OF, AND BE ENFORCEABLE BY THE PARTIES AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
11.2
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT WHICH IS ILLEGAL,
INVALID OR UNENFORCEABLE SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH ILLEGALITY,
INVALIDITY OR UNENFORCEABILITY, WITHOUT AFFECTING IN ANY WAY THE REMAINING
PROVISIONS HEREOF.
11.3
GOVERNING LAW.
THIS AGREEMENT, ITS CONSTRUCTION AND THE REMEDIES
FOR ITS ENFORCEMENT OR BREACH ARE TO BE APPLIED PURSUANT TO, AND IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
11.4
CONSENT TO JURISDICTION, SERVICE AND VENUE.
FOR THE PURPOSE OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, EACH OF
THE PARTIES HEREBY AGREES THAT EXCLUSIVE JURISDICTION AND VENUE FOR ANY SUIT
BETWEEN THE PARTIES SHALL BE IN THE COURTS OF THE STATE OF DELAWARE OR THE
PROVINCE OF ONTARIO, REGARDLESS OF THE CONVENIENCE OF SUCH FORUMS.
NEITHER
PARTY WILL OPPOSE THE ENFORCEMENT AGAINST IT IN ANY OTHER JURISDICTION OF ANY
JUDGEMENT OR ORDER OBTAINED FROM A DELAWARE OR ONTARIO COURT REGARDING THIS
AGREEMENT. THE PARTIES FURTHER AGREE AND CONSENT TO ACCEPT AND ACKNOWLEDGE ALL
SERVICE OF PROCESS CARRIED OUT BY MEANS OF REGISTERED MAIL, RETURN RECEIPT
REQUESTED, IN ACCORDANCE WITH SECTION 11.10,
IN CONNECTION WITH ANY SUCH
MATTER.
11.5
JUDGMENT CURRENCY.
IF FOR THE PURPOSE OF OBTAINING JUDGMENT AGAINST
A PARTY IN ANY COURT IN ANY JURISDICTION WITH RESPECT TO THIS AGREEMENT, IT
BECOMES NECESSARY TO CONVERT INTO THE CURRENCY OF SUCH JURISDICTION (IN THIS
SECTION REFERRED TO AS THE "JUDGMENT CURRENCY") ANY AMOUNT DUE HEREUNDER IN ANY
CURRENCY OTHER THAN THE JUDGMENT CURRENCY (IN THIS SECTION REFERRED TO AS THE
"CURRENCY OF THE AGREEMENT"), THEN CONVERSION SHALL BE