BY SUCH PARTY OR ITS REPRESENTATIVES, (II) WAS LAWFULLY AVAILABLE TO
SUCH PARTY ON A NON-CONFIDENTIAL BASIS PRIOR TO ITS DISCLOSURE BY THE COMPANY OR
ITS REPRESENTATIVES OR (III) LAWFULLY BECOMES AVAILABLE TO SUCH PARTY ON A
NON-CONFIDENTIAL BASIS FROM A SOURCE OTHER THAN THE COMPANY OR THE COMPANY'S
REPRESENTATIVES OR AGENTS, PROVIDED THAT SUCH SOURCE IS NOT BOUND BY A
CONFIDENTIALITY AGREEMENT WITH THE COMPANY OF WHICH SUCH PARTY HAS BEEN MADE
AWARE.
12.
THE PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR
IF ANY PROVISION OF THIS AGREEMENT WERE NOT STRICTLY PERFORMED IN ACCORDANCE
WITH ITS TERMS AND THAT EACH PARTY TO THIS AGREEMENT SHALL BE ENTITLED TO AN
INJUNCTION TO PREVENT BREACHES OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE
PERFORMANCE OF THE PROVISIONS HEREOF, IN ADDITION TO ANY OTHER REMEDY TO WHICH
ANY PARTY MAY BE ENTITLED AT LAW OR IN EQUITY.
IN ADDITION, THE NONPERFORMING
PARTY SHALL PAY THE COSTS AND EXPENSES OF THE OTHER PARTY IN OBTAINING SUCH
INJUNCTION AND/OR SPECIFIC PERFORMANCE, INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES.
13.
THE VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION).
THE PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF DELAWARE LOCATED IN WILMINGTON, DELAWARE FOR ANY ACTION,
SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
THE PARTIES
FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING
OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT IN SUCH COURTS AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY
WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION,
SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
4
14.
ALL NOTICES, DEMANDS AND OTHER COMMUNICATIONS TO BE GIVEN OR
DELIVERED UNDER OR BY REASON OF THE PROVISIONS OF THIS AGREEMENT SHALL BE IN
WRITING AND SHALL BE DEEMED TO HAVE BEEN GIVEN (A) WHEN DELIVERED BY HAND (WITH
WRITTEN CONFIRMATION OF RECEIPT), (B) UPON SENDING IF SENT BY ELECTRONIC MAIL OR
FACSIMILE, WITH ELECTRONIC CONFIRMATION OF SENDING, (C) ONE (1) DAY AFTER BEING
SENT BY NATIONALLY RECOGNIZED OVERNIGHT CARRIER TO THE ADDRESSES SET FORTH BELOW
OR (D) WHEN ACTUALLY DELIVERED IF SENT BY ANY OTHER METHOD THAT RESULTS IN
DELIVERY (WITH WRITTEN CONFIRMATION OF RECEIPT):
If to the Company:
MRV Communications, Inc.
20415 Nordhoff Street
Chatsworth, California 91311
Attn:
Jennifer H. Painter
Facsimile: (818) 407-5867
with a copy to:
Sullivan & Cromwell LLP
1701 Pennsylvania Ave. N.W., Suite 700
Washington, D.C. 20006
Attn:
Janet T. Geldzahler
Facsimile: (202) 293-6330
If to Value Investors for Change:
Spencer Capital Management, LLC:
1995 Broadway, Suite 1801
New York, New York 10023
Attn:
Dr. Kenneth Shubin Stein
Facsimile:
(646) 349-9642
with a copy to:
Dewey & LeBoeuf LLP
1301 Avenue of the Americas
New York, New York 10019
Attn: