(A)
BY THE MUTUAL WRITTEN CONSENT OF THE
COMPANY AND OPTIONEE; OR
(B)
BY OPTIONEE BY DELIVERY OF WRITTEN NOTICE TO
THE COMPANY.
7.2.
EFFECT OF TERMINATION.
IN THE EVENT THAT THIS
AGREEMENT SHALL BE TERMINATED PURSUANT TO THIS ARTICLE VII, ALL FURTHER
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT (OTHER THAN UNDER ARTICLE VI AND
SECTIONS 8.2, 8.3, 8.9 AND 8.12) SHALL BE TERMINATED WITHOUT FURTHER LIABILITY
OF EITHER PARTY TO THE OTHER; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL
RELIEVE EITHER PARTY FROM LIABILITY FOR ITS WILLFUL BREACH OF THIS AGREEMENT.
ARTICLE VIII
GENERAL PROVISIONS
8.1.
SURVIVAL OF OBLIGATIONS.
ALL REPRESENTATIONS,
WARRANTIES, COVENANTS AND OBLIGATIONS CONTAINED IN THIS AGREEMENT SHALL SURVIVE
THE EXECUTION AND DELIVERY OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLES III AND IV SHALL TERMINATE
ON THE EARLIER OF THE MERGER AGREEMENT EXECUTION DATE OR THE OPTION TERMINATION
DATE.
EXCEPT AS OTHERWISE PROVIDED HEREIN, NO CLAIM SHALL BE MADE FOR THE
BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN ARTICLE III OR IV OR UNDER
ANY CERTIFICATE DELIVERED WITH RESPECT THERETO UNDER THIS AGREEMENT AFTER THE
DATE ON WHICH SUCH REPRESENTATIONS AND WARRANTIES TERMINATE AS SET FORTH IN THIS
SECTION 8.1.
8.2.
CONFIDENTIAL NATURE OF INFORMATION.
EACH
PARTY HERETO AGREES THAT ALL DOCUMENTS, MATERIALS AND OTHER INFORMATION WHICH IT
SHALL HAVE OBTAINED REGARDING THE OTHER PARTY DURING THE COURSE OF THE
NEGOTIATIONS LEADING TO THE EXECUTION OF THIS AGREEMENT (WHETHER OBTAINED BEFORE
OR AFTER THE DATE OF THIS AGREEMENT), THE INVESTIGATION PROVIDED FOR HEREIN AND
THE PREPARATION OF THIS AGREEMENT AND OTHER RELATED DOCUMENTS SHALL BE HELD IN
CONFIDENCE PURSUANT TO THE CONFIDENTIALITY AGREEMENT.
56
8.3.
NO PUBLIC ANNOUNCEMENT.
NEITHER THE COMPANY
NOR OPTIONEE SHALL, WITHOUT THE PRIOR WRITTEN APPROVAL OF THE OTHER, MAKE ANY
PRESS RELEASE OR OTHER PUBLIC ANNOUNCEMENT CONCERNING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, EXCEPT AS AND TO THE EXTENT THAT EITHER PARTY
SHALL BE SO OBLIGATED BY REQUIREMENTS OF LAW OR THE RULES OF ANY STOCK EXCHANGE,
IN WHICH CASE THE OTHER PARTY SHALL BE ADVISED AND THE PARTIES SHALL USE THEIR
REASONABLE BEST EFFORTS TO CAUSE A MUTUALLY AGREEABLE RELEASE OR ANNOUNCEMENT TO
BE ISSUED; PROVIDED, THAT THE FOREGOING SHALL NOT PRECLUDE COMMUNICATIONS OR
DISCLOSURES NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS AGREEMENT OR TO COMPLY
WITH ACCOUNTING AND SECURITIES AND EXCHANGE COMMISSION DISCLOSURE OBLIGATIONS.
8.4.
NOTICES.
ALL NOTICES, CONSENTS AND OTHER
COMMUNICATIONS HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN
DULY GIVEN (A) WHEN DELIVERED BY HAND OR BY FEDERAL EXPRESS OR A SIMILARLY
REPUTABLE OVERNIGHT COURIER, (B) UPON RECEIPT, IF SENT BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR (C) WHEN SUCCESSFULLY TRANSMITTED BY
FACSIMILE (WITH A CONFIRMING COPY OF SUCH COMMUNICATION TO BE SENT AS PROVIDED
IN CLAUSE (A) OR (B) ABOVE), IN EACH CASE TO THE PARTY FOR WHOM INTENDED, AT THE
ADDRESS OR FACSIMILE NUMBER FOR SUCH PARTY SET FORTH BELOW:
If to Optionee, to:
Cephalon, Inc.
41 Moores Road
Frazer, PA 19355
Attention: