FACSIMILE, ON THE DATE OF SUCH
DELIVERY OR SUCH CONFIRMATION IS RECEIVED, OR IF SENT BY REPUTABLE OVERNIGHT
COURIER, ON THE FIRST BUSINESS DAY FOLLOWING THE DATE OF SUCH MAILING, AS
FOLLOWS:
(A)
IF TO ANY HOLDER, TO:
Cephalon, Inc.
41 Moores Road
Frazer, Pennsylvania 19355
Facsimile:
(610) 738-6258
Attention:
General Counsel
With a copy to (which shall not constitute notice):
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Facsimile:
(312) 853-7036
Attention:
Pran Jha
(B)
IF TO THE COMPANY, TO:
Acusphere, Inc.
500 Arsenal Street
Watertown, Massachusetts 02472
Facsimile:
(617) 926-3605
Attention:
Chief Executive Officer
20
With a copy to (which shall not constitute notice):
Goodwin & Proctor
Exchange Place
53 State Street
Boston, Massachusetts 02109
Facsimile:
(617) 523-1231
Attention:
Lawrence S. Wittenberg
Any party may by notice given in accordance with this Section 4.3 designate
another address or person for receipt of notices hereunder.
4.4.
GOVERNING LAW; WAIVER OF JURY TRIAL.
(A)
GOVERNING LAW.
THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
(B)
WAIVER OF JURY TRIAL.
WITH RESPECT TO ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, EACH OF THE PARTIES HEREBY IRREVOCABLY, TO THE
EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AND AGREES THAT ANY OF THEM MAY FILE A COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SUCH ACTION OR
PROCEEDING SHALL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.
4.5.
REMEDIES.
THE PARTIES HERETO AGREE THAT
IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS
AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC TERMS OR WAS
OTHERWISE BREACHED AND FURTHER AGREE THAT MONEY DAMAGES OR OTHER REMEDY AT LAW
WOULD NOT BE A SUFFICIENT OR ADEQUATE REMEDY FOR ANY BREACH OR VIOLATION OF, OR
A DEFAULT UNDER, THIS AGREEMENT BY THEM AND THAT, IN ADDITION TO ALL OTHER
REMEDIES AVAILABLE TO THEM, EACH OF THEM SHALL BE ENTITLED TO AN INJUNCTION
RESTRAINING SUCH BREACH, VIOLATION OR DEFAULT OR THREATENED BREACH, VIOLATION OR
DEFAULT AND TO ANY OTHER EQUITABLE RELIEF, INCLUDING, WITHOUT LIMITATION,
SPECIFIC PERFORMANCE OF THE TERMS AND PROVISIONS OF THIS AGREEMENT.
ANY
REQUIREMENTS FOR THE SECURING OR POSTING OF ANY BOND WITH RESPECT TO SUCH REMEDY