COMPANY IF ITS ACTION OR FAILURE TO ACT HAS BEEN THE CAUSE OF
OR RESULTED IN THE FAILURE OF THE CLOSING TO OCCUR ON OR BEFORE SUCH DATE AND
SUCH ACTION OR FAILURE TO ACT CONSTITUTES A BREACH OF THIS AGREEMENT); OR
(III)
BY THE PURCHASER IF (A) THE COMPANY HAS BREACHED ANY REPRESENTATION,
WARRANTY OR AGREEMENT CONTAINED IN THIS AGREEMENT IN ANY MATERIAL RESPECT SUCH
THAT THE CONDITIONS TO CLOSING IN SECTION 6.1.3 OR SECTION 6.1.5 WOULD NOT BE
SATISFIED, AND SUCH BREACH REMAINS UNCURED FOR THIRTY (30) DAYS AFTER WRITTEN
NOTICE TO THE COMPANY OF SUCH BREACH, OR (B) THE CLOSING SHALL NOT HAVE OCCURRED
ON OR BEFORE DECEMBER 31, 2004 (PROVIDED THAT THE RIGHT TO TERMINATE THIS
AGREEMENT UNDER THIS SECTION 7.1(III)(B) SHALL NOT BE AVAILABLE TO THE PURCHASER
IF ITS ACTION OR FAILURE TO ACT HAS BEEN THE CAUSE OF OR RESULTED IN THE FAILURE
OF THE CLOSING TO OCCUR ON OR BEFORE SUCH DATE AND SUCH ACTION OR FAILURE TO ACT
CONSTITUTES A BREACH OF THIS AGREEMENT).
7.2
EFFECT OF TERMINATION. THE RIGHT OF
TERMINATION UNDER SECTION 7.1 IS IN ADDITION TO ANY OTHER RIGHTS THE PURCHASER
OR THE COMPANY MAY HAVE UNDER THIS AGREEMENT, THE RIGHTS AGREEMENT, THE LICENSE
AGREEMENT OR OTHERWISE, AND THE EXERCISE OF A RIGHT OF TERMINATION WILL NOT BE
AN ELECTION OF REMEDIES AND WILL NOT PRECLUDE AN ACTION FOR BREACH OF THIS
AGREEMENT, THE RIGHTS AGREEMENT OR THE LICENSE AGREEMENT. IF THIS AGREEMENT IS
TERMINATED, ALL CONTINUING OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT WILL
TERMINATE EXCEPT THAT SECTIONS 5.1 (PUBLIC ANNOUNCEMENTS), 8.3 (GOVERNING LAW),
8.4 (SURVIVAL), 8.9 (EXPENSES), 8.14 (SUBMISSION TO JURISDICTION) AND 8.15
(WAIVER OF JURY TRIAL), 8.16 (OTHER REMEDIES) AND 8.17 (INJUNCTIVE RELIEF) WILL
SURVIVE INDEFINITELY UNLESS SOONER TERMINATED OR MODIFIED BY THE PARTIES IN
WRITING.
SECTION 8
MISCELLANEOUS
8.1
ACCESS TO INFORMATION. NO INFORMATION OR
KNOWLEDGE OBTAINED IN ANY INVESTIGATION BY THE PURCHASER OR THE COMPANY SHALL
AFFECT OR BE DEEMED TO MODIFY ANY REPRESENTATION OR WARRANTY CONTAINED IN THE
STOCK AGREEMENTS.
17
8.2
WAIVERS AND AMENDMENTS. THIS AGREEMENT OR ANY
PROVISION HEREOF MAY BE AMENDED, WAIVED, DISCHARGED OR TERMINATED ONLY BY A
STATEMENT IN WRITING SIGNED BY THE PARTY AGAINST WHICH ENFORCEMENT OF THE
AMENDMENT, WAIVER, DISCHARGE OR TERMINATION IS SOUGHT.
8.3
GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS OF THE STATE OF DELAWARE AS
APPLIED TO CONTRACTS ENTERED INTO SOLELY BETWEEN RESIDENTS OF, AND TO BE
PERFORMED ENTIRELY WITHIN, SUCH STATE, AND WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAWS OR CHOICE OF LAWS.
8.4
SURVIVAL. THE REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS OF EACH OF THE COMPANY AND THE PURCHASER, RESPECTIVELY,
MADE IN THIS AGREEMENT SHALL SURVIVE THE CLOSING UNTIL THE SECOND ANNIVERSARY OF
THE CLOSING DATE, AND SHALL IN NO WAY BE AFFECTED BY ANY INVESTIGATION OF THE
SUBJECT MATTER THEREOF MADE BY OR ON BEHALF OF THE PURCHASER OR THE COMPANY.
8.5
SUCCESSORS AND ASSIGNS. EXCEPT AS EXPRESSLY
PROVIDED OR CONTEMPLATED BY THIS