STOCKHOLDER'S CAPACITY.
EXCEPT FOR THE PROVISIONS
SET FORTH IN SECTION 4.6, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE
CONTRARY, EACH STOCKHOLDER EXECUTES THIS AGREEMENT IN HIS CAPACITY AS THE
BENEFICIAL OWNER OF SUCH STOCKHOLDER'S SHARES.
EXCEPT FOR THE PROVISIONS SET
FORTH IN SECTION 4.6, NO STOCKHOLDER NOR ANY OF ITS REPRESENTATIVES WHO IS AN
OFFICER OR MEMBER OF THE BOARD SHALL BE DEEMED TO HAVE MADE ANY AGREEMENT OR
UNDERSTANDING IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THOSE AGREEMENTS
SET FORTH IN SECTIONS 4.1 AND 4.2, IN HIS CAPACITY AS SUCH OFFICER OR MEMBER OF
THE BOARD.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR THE
PROVISIONS SET FORTH IN SECTION 4.6, NOTHING IN THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION SECTIONS 4.1 AND 4.2, SHALL PREVENT OR IN ANY WAY LIMIT SUCH
PERSON FROM TAKING ANY ACTION IN HIS CAPACITY AS AN OFFICER OR MEMBER OF THE
BOARD, INCLUDING WITHOUT LIMITATION ANY ACTIONS PERMITTED UNDER SECTION 5.2 AND
SECTION 6.1 OF THE MERGER AGREEMENT.
5.13.
TERMINATION.
THIS AGREEMENT SHALL TERMINATE AND BE
OF NO FURTHER FORCE AND EFFECT, (A) BY THE WRITTEN MUTUAL CONSENT OF THE PARTIES
HERETO, (B) AUTOMATICALLY AND WITHOUT ANY REQUIRED ACTION OF THE PARTIES HERETO
UPON THE EFFECTIVE TIME, (C) UPON TERMINATION OF THE MERGER AGREEMENT IN
ACCORDANCE WITH ITS TERMS OR (D) WITH RESPECT TO ANY STOCKHOLDER, ANY AMENDMENT
TO THE MERGER AGREEMENT THAT REDUCES THE AMOUNT OF THE MERGER CONSIDERATION;
PROVIDED, THAT THE PROVISION SET FORTH IN SECTION 4.6 SHALL SURVIVE TERMINATION
UPON THE EFFECTIVE TIME AND THE PROVISIONS OF THIS ARTICLE V HEREOF SHALL
SURVIVE ANY TERMINATION OF THIS AGREEMENT; AND PROVIDED, FURTHER THAT NO SUCH
TERMINATION SHALL RELIEVE ANY PARTY OF LIABILITY FOR A WILLFUL BREACH HEREOF
PRIOR TO TERMINATION.
5.14.
ENTIRE AGREEMENT.
THIS AGREEMENT AND ANY DOCUMENTS
DELIVERED BY THE PARTIES IN CONNECTION HEREWITH CONSTITUTE THE ENTIRE AGREEMENT
AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS AMONG THE PARTIES WITH RESPECT THERETO.
5.15.
WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT,
IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVER
AND CERTIFICATIONS IN THIS SECTION 5.15.
5.16.
JURISDICTION.
EACH OF THE PARTIES HERETO (I)
CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED IN THE STATE OF DELAWARE, IN THE EVENT ANY DISPUTE ARISES OUT OF
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,