adversely affected or damaged as a result of such failure
to give timely, complete, and accurate notice.
(x)
The parties shall use their commercially reasonable efforts to
collect the proceeds of any insurance that would have the effect of reducing any
Damages (in which case such proceeds shall reduce such Losses). To the extent
any Damages of an Indemnified Party are reduced by receipt of payment under
insurance policies or from third parties not affiliated with the Indemnified
Party, such payments (net of the expenses of the recovery thereof) shall be
credited against such Damages and, if indemnification payments shall have been
received prior to the collection of such proceeds, the Indemnified Party shall
remit to the Indemnifying Party the amount of such proceeds (net of the cost of
collection thereof) to the extent of indemnification payments received in
respect of such Losses. The indemnification obligations hereunder shall survive
any termination of this Agreement.
(C)
NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
13.
SPECIFIC PERFORMANCE. GRANTOR, THE COMPANY AND OPTION HOLDER
ACKNOWLEDGE AND AGREE THAT, DUE TO THE UNIQUE NATURE OF THE SUBJECT MATTER OF
THIS AGREEMENT, OPTION HOLDER WOULD SUFFER IRREPARABLE DAMAGES IN THE EVENT OF
BREACH OF THIS AGREEMENT, WHICH DAMAGES COULD NOT ADEQUATELY BE COMPENSATED
EXCEPT BY SPECIFIC PERFORMANCE OF THIS AGREEMENT. ACCORDINGLY, WITHOUT LIMITING
ANY OTHER REMEDY THAT MAY BE AVAILABLE TO OPTION HOLDER AT LAW OR EQUITY, IN THE
EVENT OF A BREACH BY GRANTOR OR THE COMPANY OF THIS AGREEMENT, IT IS AGREED THAT
OPTION HOLDER
13
SHALL BE ENTITLED TO TEMPORARY AND PERMANENT INJUNCTIVE RELIEF, INCLUDING, BUT
NOT LIMITED TO, SPECIFIC PERFORMANCE HEREOF, WITHOUT ANY SHOWING OF ACTUAL
DAMAGE OR INADEQUACY OF LEGAL REMEDY, IN ANY PROCEEDING BEFORE A COURT OF LAW
WITH PROPER JURISDICTION TO HEAR THE MATTER, WHICH MAY BE BROUGHT TO ENFORCE
THIS AGREEMENT. GRANTOR AND THE COMPANY HEREBY WAIVE ANY DEFENSE THAT THERE IS
AN ADEQUATE REMEDY AT LAW FOR SUCH BREACH OF THIS AGREEMENT.
14.
EXPENSES. OPTION HOLDER AGREES TO REIMBURSE GRANTOR, WITHIN FIFTEEN
DAYS OF INVOICING WITH REASONABLE DOCUMENTATION, FOR ITS REASONABLE AND
CUSTOMARY FEES, COSTS AND OUT-OF-POCKET EXPENSES, INCLUDING FILING FEES AND
REASONABLE AND CUSTOMARY ATTORNEYS' FEES, INCURRED IN CONNECTION WITH THE
PERFORMANCE OF ITS COVENANTS AND OBLIGATIONS HEREUNDER; PROVIDED, HOWEVER, THAT,
FOR THE AVOIDANCE OF DOUBT, OPTION HOLDER SHALL HAVE NO REIMBURSEMENT OBLIGATION
WITH RESPECT TO CLAIMS, ACTIONS OR PROCEEDINGS BROUGHT BY OR ON BEHALF OF
GRANTOR AGAINST OPTION HOLDER.
15.
FURTHER ASSURANCES. SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, EACH OF THE PARTIES HERETO WILL USE ALL COMMERCIALLY REASONABLE
EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTIONS, AND TO DO, OR CAUSE TO BE
DONE, ALL THINGS NECESSARY, PROPER OR ADVISABLE UNDER APPLICABLE LAWS AND
REGULATIONS TO CONSUMMATE AND MAKE EFFECTIVE THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
16.
AMENDMENT AND MODIFICATION. THIS AGREEMENT MAY BE AMENDED,