IRREPARABLE HARM WOULD
RESULT IF THIS AGREEMENT WERE NOT SPECIFICALLY ENFORCED.
THEREFORE, THE RIGHTS
AND OBLIGATIONS OF THE PARTIES SHALL BE ENFORCEABLE BY A DECREE OF SPECIFIC
PERFORMANCE ISSUED BY ANY COURT OF COMPETENT JURISDICTION, AND APPROPRIATE
INJUNCTIVE RELIEF MAY BE APPLIED FOR AND GRANTED IN CONNECTION THEREWITH,
WITHOUT THE NECESSITY OF POSTING A BOND OR OTHER SECURITY OR PROVING ACTUAL
DAMAGES AND WITHOUT REGARD TO THE ADEQUACY OF ANY REMEDY AT LAW.
A PARTY'S
RIGHT TO SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF SHALL BE IN ADDITION TO ALL
OTHER LEGAL OR EQUITABLE REMEDIES AVAILABLE TO SUCH PARTY.
(B)
IN ANY DISPUTE BETWEEN THE SELLERS AND THE PURCHASER THAT RESULTS
IN LITIGATION, THE PREVAILING PARTY (BEING THE SELLERS AND THE SELLER
INDEMNIFIED PARTIES, ON THE ONE HAND, AND THE PURCHASER AND THE PURCHASER
INDEMNIFIED PARTIES, ON THE OTHER HAND), SHALL BE ENTITLED TO REIMBURSEMENT OF
THE FEES AND EXPENSES INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH
LITIGATION; AND IF NONE OF THE PARTIES PREVAIL FULLY ON THE MERITS IN SUCH
LITIGATION, THEN EACH PARTY SHALL BEAR ITS OWN FEES AND EXPENSES IN CONNECTION
WITH SUCH LITIGATION UNLESS THE DELAWARE COURT DESIGNATES OTHERWISE IN A FINAL
NON-APPEALABLE ORDER.
IF THE INDEMNIFIED PARTY IS THE PREVAILING PARTY IN ANY
SUCH LITIGATION, OR IS OTHERWISE AWARDED FEES AND EXPENSES BY THE DELAWARE COURT
IN A FINAL NON-APPEALABLE ORDER, SUCH FEES AND EXPENSE TO WHICH THE INDEMNIFIED
PARTY IS ENTITLED UNDER THE PRECEDING SENTENCE SHALL BE LOSSES (BUT SHALL NOT
OTHERWISE BE LOSSES FOR PURPOSES OF ARTICLE VII).
IF THE INDEMNIFYING PARTY IS
THE PREVAILING PARTY IN ANY SUCH LITIGATION, OR IS OTHERWISE AWARDED FEES AND
EXPENSES BY THE DELAWARE COURT IN A FINAL NON-APPEALABLE ORDER, THE PURCHASER
(IF THE INDEMNIFIED PARTY IS THE PURCHASER OR A PURCHASER INDEMNIFIED PARTY) OR
THE SELLERS (IF THE INDEMNIFIED PARTY IS THE SELLER OR A SELLER INDEMNIFIED
PARTY) SHALL PAY SUCH FEES AND EXPENSES OF THE PREVAILING PARTY WITHIN TEN (10)
BUSINESS DAYS AFTER THE ORDER DESIGNATING SUCH PARTY AS THE PREVAILING PARTY OR
AWARDING FEES AND EXPENSES TO SUCH PARTY BECOMES FINAL.
10.15
THIRD PARTY BENEFICIARIES.
NO PERSON OTHER THAN THE PURCHASER AND
THE SELLERS IS, IS INTENDED TO BE, OR SHALL BE A BENEFICIARY OF THIS AGREEMENT,
OTHER THAN THE PURCHASER INDEMNIFIED
80
PARTIES, THE SELLER INDEMNIFIED PARTIES, AS PROVIDED IN SECTION 5.11(C), AND ANY
PERMITTED SUCCESSORS AND ASSIGNS OF THE PARTIES UNDER SECTION 10.4.
10.16
INTERPRETATION.
THE LANGUAGE USED IN THIS AGREEMENT SHALL BE DEEMED
TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL INTENT AND NO
RULE OF STRICT CONSTRUCTION SHALL BE APPLIED AGAINST ANY PARTY.
UNLESS
OTHERWISE EXPRESSLY SPECIFIED IN THIS AGREEMENT:
(A)
THE WORDS "HEREOF", "HEREBY" AND "HEREUNDER," AND CORRELATIVE
WORDS, REFER TO THIS AGREEMENT AS A WHOLE AND NOT ANY PARTICULAR PROVISION;
(B)
THE WORDS "INCLUDE", "INCLUDES" AND "INCLUDING", AND CORRELATIVE
WORDS, ARE DEEMED TO BE FOLLOWED BY THE PHRASE "WITHOUT LIMITATION";
(C)
THE WORD "OR" IS NOT EXCLUSIVE AND IS DEEMED TO HAVE THE