ALL OTHER PARTIES. NO PARTY HERETO SHALL RAISE THE USE OF A FACSIMILE MACHINE
OR OTHER ELECTRONIC TRANSMISSION TO DELIVER A SIGNATURE OR THE FACT THAT THIS
AGREEMENT OR ANY SIGNATURE WAS TRANSMITTED OR COMMUNICATED THROUGH THE USE OF
FACSIMILE MACHINE OR OTHER ELECTRONIC MEANS AS A DEFENSE TO THE FORMATION OF A
CONTRACT AND EACH SUCH PARTY FOREVER WAIVES ANY SUCH DEFENSE.
(L)
BUSINESS DAYS.
TO THE EXTENT ANY
PAYMENT OR OTHER ACTION OR DELIVERY IS REQUIRED TO BE MADE ON A DATE WHICH IS
NOT A BUSINESS DAY, THEN THE PERIOD REQUIRED FOR SUCH PAYMENT, ACTION OR
DELIVERY SHALL AUTOMATICALLY BE EXTENDED TO THE NEXT BUSINESS DAY IMMEDIATELY
FOLLOWING.
ALL REFERENCES TO A DAY OR DAYS SHALL BE DEEMED TO
10
REFER TO A CALENDAR DAY OR CALENDAR DAYS, AS APPLICABLE, UNLESS OTHERWISE
SPECIFICALLY PROVIDED.
(M)
SEVERABILITY.
THE PARTIES AGREE THAT (I) THE
PROVISIONS OF THIS AGREEMENT SHALL BE SEVERABLE IN THE EVENT THAT FOR ANY REASON
WHATSOEVER ANY OF THE PROVISIONS HEREOF ARE INVALID, VOID OR OTHERWISE
UNENFORCEABLE, (II) SUCH INVALID, VOID OR OTHERWISE UNENFORCEABLE PROVISIONS
SHALL BE AUTOMATICALLY REPLACED BY OTHER PROVISIONS WHICH ARE AS SIMILAR AS
POSSIBLE IN TERMS TO SUCH INVALID, VOID OR OTHERWISE UNENFORCEABLE PROVISIONS
BUT ARE VALID AND ENFORCEABLE AND (III) THE REMAINING PROVISIONS SHALL REMAIN
ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
(N)
THIRD PARTY BENEFICIARIES.
EXCEPT AS SET
FORTH HEREIN, NOTHING HEREIN EXPRESSED OR IMPLIED IS INTENDED OR SHALL BE
CONSTRUED TO CONFER UPON OR TO GIVE ANY PERSON OTHER THAN THE ESCROW AGENT, THE
COMPANY REPRESENTATIVE, THE BUYER REPRESENTATIVE, BUYER, AND HOLDCO ANY RIGHTS
OR REMEDIES UNDER OR BY REASON OF THIS AGREEMENT; PROVIDED THAT THE HOLDERS OF
COMPANY CAPITAL STOCK ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT
AND SHALL BE ENTITLED TO ENFORCE THE PROVISIONS CONTAINED HEREIN.
(O)
AUTOMATIC SUCCESSION.
ANY BANK OR
CORPORATION INTO WHICH THE ESCROW AGENT MAY BE MERGED OR WITH WHICH IT MAY BE
CONSOLIDATED, OR ANY BANK OR CORPORATION TO WHOM THE ESCROW AGENT MAY TRANSFER A
SUBSTANTIAL AMOUNT OF ITS ESCROW BUSINESS, SHALL BE THE SUCCESSOR TO THE ESCROW
AGENT WITHOUT THE EXECUTION OR FILING OF ANY PAPER OR ANY FURTHER ACT ON THE
PART OF ANY OF THE PARTIES, ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING.
(P)
BANKRUPTCY PROCEEDINGS.
IN THE EVENT OF THE
COMMENCEMENT OF A BANKRUPTCY CASE OR CASES WHEREIN BUYER, HOLDCO, THE COMPANY
REPRESENTATIVE, THE BUYER REPRESENTATIVE OR ANY HOLDER OF COMPANY CAPITAL STOCK
IS THE DEBTOR, THE ADJUSTMENT ESCROW SHARES SHALL NOT CONSTITUTE PROPERTY OF THE
DEBTOR'S ESTATE WITHIN THE MEANING OF 11 U.S.C. § 541.
(Q)
SPECIFIC PERFORMANCE.
THE OBLIGATIONS OF
THE PARTIES HERETO (INCLUDING THE ESCROW AGENT) ARE UNIQUE IN THAT TIME IS OF
THE ESSENCE, AND ANY DELAY IN PERFORMANCE HEREUNDER BY ANY PARTY WILL RESULT IN
IRREPARABLE HARM TO THE OTHER PARTIES HERETO.
ACCORDINGLY, ANY PARTY MAY SEEK
SPECIFIC PERFORMANCE AND/OR INJUNCTIVE RELIEF BEFORE ANY COURT OF COMPETENT
JURISDICTION IN ORDER TO ENFORCE THIS AGREEMENT OR TO PREVENT VIOLATIONS OF THE
PROVISIONS