HAVE.
51
SECTION 7.9
TREATMENT OF INDEMNITY
CLAIMS.
ANY INDEMNIFICATION PAYMENT BY SELLER PURSUANT TO THIS ARTICLE VII
SHALL BE TREATED AS AN ADJUSTMENT TO THE PURCHASE PRICE HEREUNDER.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1
AMENDMENT AND
MODIFICATION.
THIS AGREEMENT MAY ONLY BE AMENDED, MODIFIED AND SUPPLEMENTED BY
WRITTEN AGREEMENT OF THE PARTIES HERETO.
SECTION 8.2
NOTICES.
ALL NOTICES,
CONSENTS AND OTHER COMMUNICATIONS HEREUNDER SHALL BE IN WRITING AND SHALL BE
DEEMED TO HAVE BEEN DULY GIVEN (A) WHEN DELIVERED BY HAND OR BY FEDERAL EXPRESS
OR A SIMILAR OVERNIGHT COURIER TO, (B) FIVE (5) DAYS AFTER BEING DEPOSITED IN
ANY UNITED STATES POST OFFICE ENCLOSED IN A POSTAGE PREPAID, REGISTERED OR
CERTIFIED ENVELOPE ADDRESSED TO OR (C) WHEN SUCCESSFULLY TRANSMITTED BY FAX
(WITH A CONFIRMING COPY OF SUCH COMMUNICATION TO BE SENT AS PROVIDED IN CLAUSES
(A) OR (B) ABOVE) TO, THE PARTY FOR WHOM INTENDED, AT THE ADDRESS OR FAX NUMBER
FOR SUCH PARTY SET FORTH BELOW (OR AT SUCH OTHER ADDRESS OR TELECOPIER NUMBER
FOR A PARTY AS SHALL BE SPECIFIED BY LIKE NOTICE, PROVIDED, HOWEVER, THAT THE
DAY ANY NOTICE OF CHANGE OF ADDRESS OR TELECOPIER NUMBER SHALL BE EFFECTIVE ONLY
UPON RECEIPT):
(a)
if to Buyer, to:
Symyx Technologies, Inc.
415 Oakmead Parkway
Sunnyvale, CA
94085
Fax No.:
(408) 773-4029
Attention:
Rex S. Jackson, Esq.
with a copy to:
Cooley Godward Kronish LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA
94306
Fax No.:
(650) 849-7400
Attention:
Timothy J. Moore, Esq.
52
(b)
if to any Seller, to:
Elsevier, Inc.
360 Park Avenue South
New York, NY 10010-1710
Telephone No.:
(212) 633-3952
Fax No.:
(212) 462-1941
Attention:
Maureen McArdle, Esq.
Deputy General Counsel
with a copy to:
Baker & McKenzie LLP
1114 Avenue of the Americas
New York, NY 10036
Telephone No.:
(212) 626-4100
Fax No.: (212) 310-1600
Attention:
James C. Colihan, Esq.
SECTION 8.3
INTERPRETATION; CERTAIN
DEFINITIONS.
(A)
THE WORDS "HEREOF," "HEREIN" AND "HEREWITH"
AND WORDS OF SIMILAR IMPORT SHALL, UNLESS OTHERWISE STATED, BE CONSTRUED TO
REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS
AGREEMENT, AND ARTICLE, SECTION, PARAGRAPH, EXHIBIT AND SCHEDULE REFERENCES ARE
TO THE ARTICLES, SECTIONS, PARAGRAPHS, EXHIBITS AND SCHEDULES OF THIS AGREEMENT
UNLESS OTHERWISE SPECIFIED.
(B)
WHENEVER THE WORDS "INCLUDE," "INCLUDES" OR
"INCLUDING" ARE USED IN THIS AGREEMENT THEY SHALL BE DEEMED TO BE FOLLOWED BY
THE WORDS "WITHOUT LIMITATION."
(C)
THE WORDS DESCRIBING THE SINGULAR NUMBER
SHALL INCLUDE THE PLURAL AND VICE VERSA, AND WORDS DENOTING ANY GENDER SHALL
INCLUDE ALL GENDERS AND WORDS DENOTING NATURAL PERSONS SHALL INCLUDE
CORPORATIONS AND PARTNERSHIPS AND VICE VERSA.
(D)
THE PHRASE "TO SELLERS' KNOWLEDGE", "TO THE
KNOWLEDGE OF THE MDL GROUP COMPANIES" OR ANY SIMILAR PHRASE SHALL MEAN THE
ACTUAL KNOWLEDGE AFTER DUE INQUIRY, INCLUDING OF DIRECT REPORTS, OF EACH OF THE
FOLLOWING INDIVIDUALS IN THEIR DESIGNATED AREAS OF EXPERTISE AND
RESPONSIBILITY:
LARS BARFOD (ALL AREAS), CARMEL ANDREWS (FINANCE), JEAN
COLOMBEL (SALES AND SERVICES), AND HOWARD ABELS (SOFTWARE).
(E)
THE PHRASE "ORDINARY