A. Cifu, Esq.
Tel:
(212) 373-3436
Fax: (212) 757-3990
5
(b)
if to Parent or Merger Sub, to:
Magellan Holdings, Inc.
13560 Morris Road
Alpharetta, GA 30004
Attention:
Chief Executive Officer
Telephone:
(678) 319-8554
Facsimile:
(678) 319-7951
with a copy to:
Golden Gate Private Equity, Inc.
One Embarcadero Center, 33rd Floor
San Francisco, CA 94111
Attention:
David Dominik
Prescott Ashe
Telephone:
(415) 627-4500
Facsimile:
(415) 627-4501
and a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, Illinois 60601-6636
Attention:
Jeffrey C. Hammes, P.C.
Gary M. Holihan, P.C.
Telephone:
(312) 861-2000
Facsimile:
(312) 861-2200
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
11.
EXPENSES. EACH PARTY HERETO SHALL PAY ITS OWN EXPENSES INCURRED IN
CONNECTION WITH THIS AGREEMENT.
12.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.
13.
SUBMISSION TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ANY ACTION, SUIT OR PROCEEDING, AT LAW OR EQUITY,
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR TRANSACTIONS
CONTEMPLATED HEREBY SHALL ONLY BE BROUGHT IN ANY FEDERAL COURT OF THE STATE OF
DELAWARE OR THE COURT OF CHANCERY OF THE STATE OF DELAWARE, AND HEREBY
IRREVOCABLY AND UNCONDITIONALLY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION
AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES (BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE) ANY AND ALL
JURISDICTIONAL, VENUE AND CONVENIENCE OBJECTIONS OR DEFENSES THAT SUCH PARTY MAY
HAVE IN SUCH ACTION, SUIT OR PROCEEDING. EACH PARTY
6
HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS, IN THE MANNER PROVIDED FOR NOTICE IN SECTION 10 OR
OTHERWISE. NOTHING HEREIN CONTAINED SHALL BE DEEMED TO AFFECT THE RIGHT OF ANY
PARTY TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER PARTY IN ANY OTHER
JURISDICTION TO ENFORCE JUDGMENTS OBTAINED IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT PURSUANT TO THIS SECTION 13.
14.
NO WAIVER. THE FAILURE OF ANY PARTY HERETO TO EXERCISE ANY RIGHT,
POWER OR REMEDY PROVIDED UNDER THIS AGREEMENT OR OTHERWISE AVAILABLE IN RESPECT
HEREOF AT LAW OR IN EQUITY, OR TO INSIST UPON COMPLIANCE BY ANY OTHER PARTY
HERETO WITH ITS OBLIGATIONS HEREUNDER, AND ANY CUSTOM OR PRACTICE OF THE PARTIES
AT VARIANCE WITH THE TERMS HEREOF, SHALL NOT CONSTITUTE A WAIVER BY SUCH PARTY
OF ITS RIGHT TO EXERCISE ANY SUCH OR OTHER RIGHT, POWER OR REMEDY OR TO DEMAND
SUCH COMPLIANCE.
15.
ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. THIS AGREEMENT
(A) CONSTITUTES THE ENTIRE AGREEMENT, AND SUPERSEDES ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, BOTH WRITTEN AND ORAL, AMONG THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT AND (B) IS NOT INTENDED TO