INSTRUMENT (OR
THE APPLICATION OF SUCH IN OTHER JURISDICTIONS OR TO PERSONS OR CIRCUMSTANCES
OTHER THAN THOSE TO WHICH IT WAS HELD INVALID, VOID OR UNENFORCEABLE) SHALL IN
NO WAY BE AFFECTED, IMPAIRED OR INVALIDATED, AND TO THE EXTENT PERMITTED BY ANY
APPLICABLE LAW, ANY SUCH PROVISION SHALL BE RESTRICTED IN APPLICABILITY OR
REFORMED TO THE MINIMUM EXTENT REQUIRED FOR SUCH TO BE ENFORCEABLE.
THIS
PROVISION SHALL BE INTERPRETED AND ENFORCED TO GIVE EFFECT TO THE ORIGINAL
WRITTEN INTENT OF THE PARTIES PRIOR TO DETERMINATION OF SUCH INVALIDITY OR
UNENFORCEABILITY.
10.9.
HEADINGS.
THE HEADINGS OF THE ARTICLES AND
SECTIONS HEREIN ARE INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND ARE NOT
INTENDED TO BE PART OF OR TO AFFECT THE MEANING OR INTERPRETATION OF THIS
AGREEMENT.
10.10.
PUBLIC DISCLOSURE.
EXCEPT AS OTHERWISE REQUIRED BY LAW
OR BY OBLIGATIONS PURSUANT TO THE RULES OF ANY SECURITIES EXCHANGE, FOR SO LONG
AS THIS AGREEMENT IS IN EFFECT, NEITHER PARTY SHALL MAKE ANY PUBLIC DISCLOSURE
REGARDING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE OTHER PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD.
10.11.
NO THIRD-PARTY RIGHTS.
THIS AGREEMENT SHALL BE BINDING
UPON AND INURE SOLELY TO THE BENEFIT OF EACH PARTY HERETO, BUYER'S PERMITTED
ASSIGNS, THE BUYER INDEMNIFIED PARTIES AND THE SELLER INDEMNIFIED PARTIES, AND
NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY
OTHER PERSON ANY RIGHTS OR REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON
OF THIS AGREEMENT.
10.12.
DISTRIBUTIONS AND NOTICES RECEIVED AFTER EACH CLOSING
DATE.
SELLERS SHALL REMIT TO BUYER, PROMPTLY UPON RECEIPT THEREOF, ANY
DISTRIBUTIONS OR NOTICES RECEIVED BY THEM AFTER EACH CLOSING DATE WITH RESPECT
TO ANY PARTNERSHIP INTEREST TRANSFERRED TO BUYER.
10.13.
RESOLUTION OF CONFLICTS.
IN THE EVENT OF ANY
INCONSISTENCY OR CONFLICT BETWEEN THE TERMS AND PROVISIONS OF THIS AGREEMENT AND
THE TERMS AND PROVISIONS OF ANY DOCUMENT EXECUTED BY BUYER AND/OR SELLERS IN
CONNECTION WITH OBTAINING ANY GP CONSENTS (OTHER THAN THE LETTER AGREEMENT), AS
BETWEEN BUYER AND SELLERS, THE PROVISIONS OF THIS AGREEMENT SHALL CONTROL.
IN
THE EVENT OF CONFLICT BETWEEN THE PROVISIONS OF THE LETTER AGREEMENT AND THIS
AGREEMENT, AS IT MAY RELATE TO THE SUBJECT MATTER OF THE LETTER AGREEMENT, THE
PROVISIONS OF THE LETTER AGREEMENT SHALL CONTROL.
10.14.
NOTIFICATION BY EACH PARTY.
EACH PARTY HERETO SHALL
IMMEDIATELY NOTIFY THE OTHER PARTIES HERETO IF SUCH PARTY SHALL BECOME AWARE OF
ANY FACT OR CIRCUMSTANCE THAT WOULD
24
CAUSE ANY OF SUCH PARTY'S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
AGREEMENT TO BE UNTRUE.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 13th day
of February, 2005.
MVE, INC.
By:
/s/ James V. Mahoney
Name:
James V. Mahoney
Title:
President and Chief Executive Officer
MIAMI VALLEY INSURANCE COMPANY
By:
/s/ James V. Mahoney
Name:
James V. Mahoney
Title:
President and Chief Executive Officer
ALPINVEST/LEXINGTON 2005, LLC
("Buyer")
By:
Lexington Advisors Inc., its Manager
By:
/s/ Wilson S. Warren
Name:
Wilson S. Warren
Title:
Executive Vice President