INDEMNIFICATION FROM THE INDEMNIFYING PARTY, BUT THE INDEMNIFYING PARTY
SHALL BE ENTITLED TO BE INDEMNIFIED BY THE INDEMNIFYING PARTY FOR THE FULL
AMOUNT OF ANY OTHER DAMAGES SUFFERED BY THE
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INDEMNIFIED PARTY AS A RESULT OF OR ARISING OUT OF THE THIRD PARTY CLAIM. THE
PARTY CONTROLLING THE DEFENSE OF ANY THIRD PARTY SUIT, ACTION OR PROCEEDING
SHALL KEEP THE OTHER PARTY ADVISED OF THE STATUS OF SUCH ACTION, SUIT OR
PROCEEDING AND THE DEFENSE THEREOF AND SHALL CONSIDER IN GOOD FAITH
RECOMMENDATIONS MADE BY THE OTHER PARTY WITH RESPECT THERETO.
11.05
EXCLUSIVE REMEDY. AFTER THE CLOSING, SECTIONS 8.02, 9.02 AND 11.02
SHALL PROVIDE THE EXCLUSIVE REMEDY FOR ANY MISREPRESENTATION OR BREACH OF
WARRANTY, COVENANT OR OTHER AGREEMENT OR OTHER CLAIM ARISING OUT OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OTHER THAN THE COVENANTS
CONTAINED IN SECTIONS 5.04 (NONCOMPETITION) AND 7.01 (CONFIDENTIALITY), OR WITH
RESPECT TO CLAIMS FOR FRAUD, WILLFUL MISREPRESENTATION OR WILLFUL BREACH.
ARTICLE XII
TERMINATION
12.01
GROUNDS FOR TERMINATION. THIS AGREEMENT MAY BE TERMINATED AT ANY TIME
PRIOR TO THE CLOSING:
(A)
BY WRITTEN AGREEMENT OF BUYER AND SELLER;
(B)
BY EITHER BUYER OR SELLER IF THE CLOSING SHALL NOT HAVE BEEN
CONSUMMATED ON OR BEFORE JUNE 30, 2006; PROVIDED THAT SUCH TERMINATION RIGHT
SHALL NOT BE AVAILABLE TO A PARTY THAT HAS FAILED TO FULFILL ITS OBLIGATIONS
UNDER THIS AGREEMENT OR WHOSE ACTS OR OMISSIONS HAVE BEEN A SIGNIFICANT CAUSE OF
THE CLOSING NOT OCCURRING ON OR BEFORE SUCH DATE; AND
(C)
BY EITHER SELLER OR BUYER IF CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY WOULD VIOLATE ANY NONAPPEALABLE FINAL ORDER, DECREE OR
JUDGMENT OF ANY COURT OR GOVERNMENTAL BODY HAVING COMPETENT JURISDICTION.
The party desiring to terminate this Agreement pursuant to clauses (b) or (c)
shall give notice of such termination to the other party.
12.02
EFFECT OF TERMINATION. IF THIS AGREEMENT IS TERMINATED AS PERMITTED
BY SECTION 12.01, SUCH TERMINATION SHALL BE WITHOUT LIABILITY OF EITHER PARTY
(OR ANY SHAREHOLDER, DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT OR
REPRESENTATIVE OF SUCH PARTY) TO THE OTHER PARTY TO THIS AGREEMENT; PROVIDED
THAT IF SUCH TERMINATION SHALL RESULT FROM THE WILLFUL FAILURE OF ANY PARTY TO
FULFILL A CONDITION TO THE PERFORMANCE OF THE OBLIGATIONS OF ANOTHER PARTY OR TO
PERFORM A COVENANT OF THIS AGREEMENT OR FROM A WILLFUL BREACH OF ANY
REPRESENTATION OR WARRANTY BY ANY PARTY TO THIS AGREEMENT, SUCH PARTY SHALL BE
FULLY LIABLE FOR ANY AND ALL DAMAGES INCURRED OR SUFFERED BY THE OTHER PARTIES
AS A RESULT OF SUCH FAILURE OR BREACH. THE PROVISIONS OF SECTIONS 7.01
(CONFIDENTIALITY), 13.03 (EXPENSES) AND 13.10 (JURISDICTION) SHALL SURVIVE ANY
TERMINATION HEREOF PURSUANT TO SECTION 12.01.
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ARTICLE XIII
MISCELLANEOUS
13.01
NOTICES. ALL NOTICES, REQUESTS, DEMANDS OR OTHER COMMUNICATIONS THAT
ARE REQUIRED OR MAY BE GIVEN PURSUANT TO THE TERMS OF THIS AGREEMENT SHALL BE IN
WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN:
(I) ON THE DATE OF
DELIVERY, IF PERSONALLY DELIVERED BY HAND, (II) UPON THE THIRD DAY AFTER SUCH