Minneapolis, MN
55402-1425
Telephone:
(612) 492-7162
Facsimile:
(612) 492-7077
Attention:
Thomas R. King, Esq.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or
(C) provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
(G)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS.
THE COMPANY SHALL NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE BUYER, EXCEPT BY
MERGER OR CONSOLIDATION OR A SALE OF SUBSTANTIALLY ALL OF ITS ASSETS.
THE BUYER
MAY ASSIGN SOME OR ALL OF ITS RIGHTS HEREUNDER WITHOUT THE CONSENT OF THE
COMPANY, PROVIDED, HOWEVER, THAT ANY SUCH ASSIGNMENT SHALL NOT RELEASE THE BUYER
FROM ITS OBLIGATIONS HEREUNDER UNLESS SUCH OBLIGATIONS ARE ASSUMED BY SUCH
ASSIGNEE AND THE COMPANY HAS CONSENTED TO SUCH ASSIGNMENT AND ASSUMPTION, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
(H)
NO THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY PROVISION HEREOF BE ENFORCED
BY, ANY OTHER PERSON.
(I)
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
THE BUYER CONTAINED IN SECTIONS 2 AND 3, SHALL SURVIVE THE CLOSING FOR ONE
YEAR.
THE AGREEMENTS SET FORTH IN THIS SECTION 7 SHALL SURVIVE THE TERMINATION
OF THIS AGREEMENT.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO AND PERFORM, OR CAUSE TO
BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND SHALL EXECUTE AND
DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND DOCUMENTS, AS
THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY
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out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(K)
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT WILL
BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL
INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
(L)
CONFIDENTIALITY.
THE BUYER AGREES THAT, EXCEPT WITH THE PRIOR
WRITTEN PERMISSION OF THE COMPANY, IT SHALL AT ALL TIMES KEEP CONFIDENTIAL AND
NOT DIVULGE, FURNISH OR MAKE ACCESSIBLE TO ANYONE
CONFIDENTIAL INFORMATION,
KNOWLEDGE OR DATA CONCERNING OR RELATING TO THE BUSINESS OR FINANCIAL AFFAIRS OF
THE COMPANY TO WHICH IT HAS BEEN OR SHALL BECOME PRIVY BY REASON OF THIS
AGREEMENT, DISCUSSIONS OR NEGOTIATIONS RELATING TO THIS AGREEMENT (INCLUDING BUT
LIMITED TO THE FACT THAT ANY TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS HAVE OCCURRED OR MAY OCCUR).
(M)
LEGAL REPRESENTATION.
THE BUYER ACKNOWLEDGES THAT: (A) IT HAS READ
THIS AGREEMENT AND THE EXHIBITS HERETO; (B)