however, that the foregoing is not intended to affect each party's
privilege to maintain, in its sole discretion, the confidentiality of
communications with its attorneys or with a federally authorized tax
practitioner under Section 7525 of the Internal Revenue Code.
11.17.
Additional Rules of Construction.
The following provisions shall be
applied wherever appropriate herein:
(A)
"HEREIN," "HEREBY," "HEREUNDER," "HEREOF" AND OTHER EQUIVALENT
WORDS SHALL REFER TO THIS AGREEMENT AS AN ENTIRETY AND NOT SOLELY TO THE
PARTICULAR PORTION OF THIS AGREEMENT IN WHICH ANY SUCH WORD IS USED;
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(B)
ALL DEFINITIONS SET FORTH HEREIN SHALL BE DEEMED APPLICABLE
WHETHER THE WORDS DEFINED ARE USED HEREIN IN THE SINGULAR OR THE PLURAL;
(C)
ALL PRONOUNS AND ANY VARIATIONS THEREOF REFER TO THE MASCULINE,
FEMININE OR NEUTER, SINGULAR OR PLURAL, AS THE CONTEXT MAY REQUIRE;
(D)
THE WORDS "INCLUDE" AND "INCLUDING" AND VARIATIONS THEREOF SHALL
NOT BE DEEMED TERMS OF LIMITATION, BUT RATHER SHALL BE DEEMED TO BE FOLLOWED BY
THE WORDS "WITHOUT LIMITATION";
(E)
ALL ACCOUNTING TERMS NOT SPECIFICALLY DEFINED HEREIN SHALL BE
CONSTRUED IN ACCORDANCE WITH GAAP;
(F)
THE CAPTIONS AND DESCRIPTIVE HEADINGS HEREIN ARE INCLUDED FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL BE IGNORED IN THE CONSTRUCTION OR
INTERPRETATION HEREOF;
(G)
ANY REFERENCES HEREIN TO A PARTICULAR SECTION, ARTICLE, EXHIBIT OR
SCHEDULE MEANS A SECTION OR ARTICLE OF, OR AN EXHIBIT OR SCHEDULE TO, THIS
AGREEMENT UNLESS ANOTHER AGREEMENT IS SPECIFIED;
(H)
THE EXHIBITS AND THE SELLERS DISCLOSURE SCHEDULES ATTACHED HERETO
ARE INCORPORATED HEREIN BY REFERENCE AND SHALL BE CONSIDERED PART OF THIS
AGREEMENT AS IF FULLY SET FORTH HEREIN; AND
(I)
ALL REFERENCES TO "$" OR "DOLLARS" SHALL MEAN UNITED STATES
DOLLARS.
11.18.
Enforcement of this Agreement.
Subject to Section 11.6 above, the
parties hereto agree that money damages or other remedy at law would not be
sufficient or adequate remedy for any breach or violation of, or default under,
this Agreement by them and that in addition to all other remedies available to
them, each of them shall be entitled to the fullest extent permitted by law to
an injunction restraining such breach, violation or default and to other
equitable relief, including specific performance, with bond or other security
being required.
11.19.
Knowledge.
When references are made in this Agreement to
information being "to the knowledge of" a party hereto or similar language, such
knowledge shall refer to the actual knowledge of: (a) for the purposes of
Article 4 and Article 5, William Paulos, William Wortman, and Tom Lettero for
Millennium, and Stephen Kaplan and Skardon Baker for HoldCo; (b) for the
purposes of Article 5, William Paulos, William Wortman, Tom Lettero, and Guy
Hillyer; and (c) for the purposes of Article 6, Rowen Craigie and Geoff
Kleemann.
Such individuals shall be deemed to have "knowledge" of a particular
fact or other matter if such individual is actually aware of such fact or other
matter.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Agreement as of