BENEFIT FOR
THESE PURPOSES.
7.7
DISCLAIMER OF CERTAIN DAMAGES.
EXCEPT AS MAY
BE PAYABLE TO A THIRD PARTY PURSUANT TO AN INDEMNIFYING PARTY'S DEFENSE
OBLIGATION UNDER SECTION 7.5, IN NO EVENT SHALL THE TERM "LOSSES" INCLUDE ANY
CONSEQUENTIAL, INCIDENTIAL OR INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR
DAMAGE TO AN INDEMNIFIED PARTY, INCLUDING WITHOUT LIMITATION FOR LOST PROFITS,
WHETHER OR NOT BASED UPON EVENTS GIVING RISE TO INDEMNIFICATION HEREUNDER.
7.8
ASSIGNMENT OF CLAIMS.
IF THE INDEMNIFIED
PARTY RECEIVES ANY PAYMENT FROM AN INDEMNIFYING PARTY IN RESPECT OF ANY LOSSES
AND THE INDEMNIFIED PARTY COULD HAVE RECOVERED ALL OR A PART OF SUCH LOSSES FROM
A THIRD PARTY (A "POTENTIAL CONTRIBUTOR") BASED ON THE UNDERLYING CLAIM OR
DEMAND ASSERTED AGAINST THE INDEMNIFYING PARTY, THE INDEMNIFIED PARTY SHALL, TO
THE EXTENT PERMITTED BY LAW OR ANY APPLICABLE CONTRACTUAL ARRANGEMENT, ASSIGN
SUCH OF ITS RIGHTS TO PROCEED AGAINST THE POTENTIAL CONTRIBUTOR AS ARE NECESSARY
TO PERMIT THE INDEMNIFYING PARTY TO RECOVER FROM THE POTENTIAL CONTRIBUTOR THE
AMOUNT OF SUCH PAYMENT.
ARTICLE VIII
MISCELLANEOUS
8.1
ENTIRE AGREEMENT; AMENDMENT AND WAIVER.
THIS
AGREEMENT (INCLUDING ANY EXHIBITS AND SCHEDULES HERETO) AND THE ANCILLARY
AGREEMENTS (INCLUDING ANY EXHIBITS AND SCHEDULES THERETO), SUPERSEDE ALL PRIOR
AGREEMENTS, WRITTEN OR ORAL, AMONG THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND THEREOF AND CONTAIN THE ENTIRE AGREEMENT AMONG THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF.
THIS AGREEMENT MAY NOT
BE AMENDED, SUPPLEMENTED OR MODIFIED, AND NO PROVISIONS HEREOF MAY BE MODIFIED
OR WAIVED, EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY SKT, SKTI AND
EARTHLINK.
NO WAIVER OF ANY PROVISIONS HEREOF BY ANY PARTY SHALL BE DEEMED A
WAIVER OF ANY OTHER PROVISIONS HEREOF BY ANY
28
SUCH PARTY, NOR SHALL ANY SUCH WAIVER BE DEEMED A CONTINUING WAIVER OF ANY
PROVISION HEREOF BY SUCH PARTY.
8.2
EXPENSES.
EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT ARE CONSUMMATED, THE PARTIES SHALL BEAR THEIR OWN RESPECTIVE EXPENSES
(INCLUDING, BUT NOT LIMITED TO, TRANSFER TAXES AND ALL COMPENSATION AND EXPENSES
OF COUNSEL, FINANCIAL ADVISORS, CONSULTANTS, ACTUARIES AND INDEPENDENT
ACCOUNTANTS) INCURRED IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY.
8.3
PUBLIC DISCLOSURE.
EACH PARTY HEREBY AGREES
WITH THE OTHER PARTY THAT PRIOR TO THE CLOSING, EXCEPT AS MAY BE REQUIRED TO
COMPLY WITH THE REQUIREMENTS OF APPLICABLE LAW OR THE RULES AND REGULATIONS OF
ANY NATIONAL SECURITIES EXCHANGE UPON WHICH THE SECURITIES OF ONE OF THE PARTIES
OR ITS AFFILIATES IS LISTED, NO PRESS RELEASE OR SIMILAR PUBLIC ANNOUNCEMENT OR
COMMUNICATION WILL BE MADE OR CAUSED TO BE MADE CONCERNING THE EXECUTION OR
PERFORMANCE OF THIS AGREEMENT UNLESS SPECIFICALLY APPROVED IN ADVANCE BY THE
PARTIES; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT EITHER PARTY TO THIS
AGREEMENT IS REQUIRED BY LAW OR THE RULES AND REGULATIONS OF ANY STOCK EXCHANGE
UPON WHICH THE SECURITIES OF ONE OR MORE OF THE PARTIES OR ITS AFFILIATES IS
LISTED TO MAKE SUCH A PUBLIC DISCLOSURE, SUCH PUBLIC DISCLOSURE SHALL