EFFECTIVE UNLESS
THE SAME SHALL BE IN WRITING AND SIGNED BY EACH OF THE NON-BREACHING PARTIES AND
THEN SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND
FOR THE SPECIFIC PURPOSE FOR WHICH GIVEN.
(B)
SEVERABILITY. IF, FOR ANY REASON WHATSOEVER, ANY ONE OR MORE OF
THE PROVISIONS OF THIS AGREEMENT SHALL BE HELD OR DEEMED TO BE INOPERATIVE,
UNENFORCEABLE OR INVALID IN A PARTICULAR CASE OR IN ALL CASES, SUCH
CIRCUMSTANCES SHALL NOT HAVE THE EFFECT OF RENDERING ANY OF THE OTHER PROVISIONS
OF THIS AGREEMENT INOPERATIVE, UNENFORCEABLE OR INVALID, AND THE INOPERATIVE,
UNENFORCEABLE OR INVALID PROVISION SHALL BE CONSTRUED AS IF IT WERE WRITTEN SO
AS TO EFFECTUATE, TO THE MAXIMUM EXTENT POSSIBLE, THE PARTIES' INTENT.
(C)
BINDING EFFECT. THIS AGREEMENT SHALL INURE TO AND BE BINDING UPON
THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS; PROVIDED,
HOWEVER, THAT THE COMPANY MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF THE TRUSTEE.
(D)
CHOICE OF LAW. THE EXISTENCE, VALIDITY, CONSTRUCTION, OPERATION
AND EFFECT OF ANY AND ALL TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK, INCLUDING WITHOUT LIMITATION THE NEW YORK UCC, WITHOUT GIVING EFFECT
TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE. THE SECURITIES INTERMEDIARY'S
JURISDICTION FOR PURPOSES OF SECTION 8-110 OF THE NEW YORK UCC SHALL BE THE
STATE OF NEW YORK.
(E)
ENTIRE AGREEMENT. THIS AGREEMENT, THE PURCHASE AGREEMENT, THE
NOTES AND THE INDENTURE CONTAIN THE ENTIRE AGREEMENT AMONG THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND ALL PRIOR AGREEMENTS,
UNDERSTANDINGS AND COMMITMENTS WITH RESPECT THERETO, WHETHER ORAL OR WRITTEN;
PROVIDED, HOWEVER, THAT THIS AGREEMENT IS EXECUTED AND ACCEPTED BY THE TRUSTEE
AND THE ESCROW AGENT SUBJECT TO ALL TERMS AND CONDITIONS OF ITS ACCEPTANCE OF
THE TRUST UNDER THE INDENTURE, AS FULLY AS IF SAID TERMS AND CONDITIONS WERE SET
FORTH AT LENGTH HEREIN.
12
(F)
AMENDMENTS. THIS AGREEMENT MAY BE AMENDED ONLY BY A WRITING
SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF ALL PARTIES. THE TRUSTEE AND THE
ESCROW AGENT MAY EXECUTE AN AMENDMENT TO THIS AGREEMENT ONLY IF THE CONSENT OF
EACH OF THE HOLDERS OF THE NOTES REQUIRED BY SECTION 9.02 OF THE INDENTURE HAS
BEEN OBTAINED OR IS NOT REQUIRED PURSUANT TO THE TERMS THEREOF.
(G)
NOTICES. ALL NOTICES, REQUESTS, INSTRUCTIONS, ORDERS AND OTHER
COMMUNICATIONS REQUIRED OR PERMITTED TO BE GIVEN OR MADE UNDER THIS AGREEMENT TO
ANY PARTY HERETO SHALL BE DELIVERED IN WRITING BY HAND DELIVERY OR OVERNIGHT
DELIVERY, OR SHALL BE DELIVERED BY FACSIMILE WITH MACHINE CONFIRMATION OF FULL
DELIVERY NOT MORE THAN 24 HOURS FOLLOWING SUCH FACSIMILE NOTICE. A NOTICE GIVEN
IN ACCORDANCE WITH THE PRECEDING SENTENCE SHALL BE DEEMED TO HAVE BEEN DULY
GIVEN UPON THE SENDING THEREOF NOTICES SHOULD BE ADDRESSED AS FOLLOWS:
To the Company:
Incyte Corporation
Route 141 and Henry Clay Road
Building E336
Wilmington, DE 19880
Attention:
Chief