Bank of California, N.A.
Attention: Lorraine McIntire
Vice President
Corporate Trust Department
120 South Pedro Street, Suite 400
Los Angeles, California 90012
Telephone: (213) 972-5675
Facsimile: (213) 972-5694
If to Gene Resnick:
Gene Resnick, M.D.
3020 Westchester Avenue, Suite 202
Purchase, New York 10577
Attention: Gene Resnick, M.D.
Facsimile (914) 694-3293
with a required copy to:
Herrick, Feinstein LLP
2 Park Avenue
New York, New York 10016
Attention: John Goldman, Esq.
Facsimile: (212) 592-1500
Any such notice or instruction shall be effective upon receipt.
Any party may
change its address and facsimile number for the purpose of notice by giving
notice in accordance with the provisions of this Section 11.
12.
ASSIGNMENT, SUCCESSORS AND NO THIRD-PARTY RIGHTS.
NO PARTY MAY
ASSIGN ANY OF ITS RIGHTS UNDER THIS AGREEMENT WITHOUT THE PRIOR CONSENT OF THE
OTHER PARTIES, WHICH WILL NOT BE UNREASONABLY WITHHELD OR DELAYED, EXCEPT THAT
IT&E MAY ASSIGN ANY OF ITS RIGHTS UNDER THIS AGREEMENT TO ANY THIRD PARTY WHO
ACQUIRES ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OF IT&E TO WHICH THIS
AGREEMENT RELATES, PROVIDED THAT SUCH THIRD PARTY AGREES TO BE BOUND BY THIS
AGREEMENT.
SUBJECT TO THE PRECEDING SENTENCE, THIS AGREEMENT WILL APPLY TO, BE
BINDING IN ALL RESPECTS UPON AND INURE TO THE BENEFIT OF THE SUCCESSORS AND
PERMITTED ASSIGNS OF THE PARTIES.
NOTHING EXPRESSED OR REFERRED TO IN THIS
AGREEMENT WILL BE CONSTRUED TO GIVE ANY PERSON OTHER THAN THE PARTIES TO THIS
AGREEMENT ANY LEGAL OR EQUITABLE RIGHT, REMEDY OR CLAIM UNDER OR WITH RESPECT TO
THIS AGREEMENT OR ANY PROVISION OF THIS AGREEMENT.
THIS AGREEMENT AND ALL OF
ITS PROVISIONS AND CONDITIONS ARE FOR THE SOLE AND EXCLUSIVE BENEFIT OF THE
PARTIES TO THIS AGREEMENT AND THEIR SUCCESSORS AND ASSIGNS.
13.
ENTIRE AGREEMENT; AMENDMENT.
THIS AGREEMENT, AS AMONG THE PARTIES
HERETO, AND THIS AGREEMENT AND THE ASSET PURCHASE AGREEMENT, AS BETWEEN THE
BUYER AND THE SHAREHOLDER, CONTAIN THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES
HERETO CONCERNING THE SUBJECT MATTER ADDRESSED IN THIS AGREEMENT AND THIS
AGREEMENT MAY NOT BE CHANGED, MODIFIED, ALTERED OR TERMINATED EXCEPT BY AN
AGREEMENT IN WRITING EXECUTED BY THE PARTIES HERETO.
ANY WAIVER, FAILURE OR
DELAY IN EXERCISE BY THE PARTIES TO THIS AGREEMENT OF ANY OF THEIR RIGHTS UNDER
THIS AGREEMENT OR OF ANY BREACH OF THIS AGREEMENT SHALL NOT CONSTITUTE A WAIVER
OF ANY OTHER RIGHTS OR OF ANY OTHER FUTURE BREACH.
14.
ATTORNEY'S FEES.
IF ANY LEGAL ACTION OR OTHER PROCEEDING IS
BROUGHT FOR THE ENFORCEMENT OF THIS AGREEMENT, OR BECAUSE OF AN ALLEGED DISPUTE,
BREACH OR DEFAULT RELATING TO THIS AGREEMENT, THE SUCCESSFUL OR PREVAILING PARTY
SHALL BE ENTITLED TO RECOVER REASONABLE OUT-OF-POCKET ATTORNEY'S FEES AND OTHER
COSTS INCURRED IN SUCH DISPUTE, ACTION OR PROCEEDING, IN ADDITION TO ANY OTHER
RELIEF TO WHICH IT OR THEY MAY BE ENTITLED.
THE ESCROW AGENT SHALL BE ENTITLED
TO DEDUCT ANY REASONABLE ATTORNEY'S FEES INCURRED PURSUANT TO THIS SECTION 14
FROM THE ESCROW ACCOUNT; PROVIDED, HOWEVER, THAT IN THE EVENT SUCH ATTORNEY'S
FEES ARE CHARGEABLE TO IT&E,