Company orally and in writing
of (x) any Takeover Proposal or any request for information with respect to any
Takeover Proposal, the material terms and conditions of such Takeover Proposal
or request, and the identity of the person making such Takeover Proposal or
request and (y) any material changes in any such Takeover Proposal or request.
9.
Agreement Solely as Stockholder.
Notwithstanding anything in
this Agreement to the contrary, Stockholder is not entering into this Agreement
or making any agreement herein in any capacity other than as record holder or
beneficial owner of the Voting Shares, and nothing herein shall be construed to
limit or affect any action or inaction by Stockholder, in Stockholder's capacity
as a director, officer or fiduciary of the Company (or a Company Subsidiary),
and any such action or inaction shall not be deemed to be a breach of this
Agreement.
10.
Miscellaneous.
(A)
NOTICES.
ANY NOTICE, REQUEST, INSTRUCTION
OR OTHER COMMUNICATION PROVIDED TO A PARTY PURSUANT TO THIS AGREEMENT SHALL BE
IN WRITING AND DELIVERED BY HAND OR OVERNIGHT COURIER SERVICE OR BY FACSIMILE,
IF TO PARENT, TO THE ADDRESS OR FACSIMILE NUMBER SET FORTH IN THE MERGER
AGREEMENT, OR IF TO STOCKHOLDER, TO THE ADDRESS OR FACSIMILE NUMBER SET FORTH
BELOW STOCKHOLDER'S NAME ON THE SIGNATURE PAGE HERETO, OR TO SUCH OTHER PERSONS,
ADDRESSES OR FACSIMILE NUMBERS AS MAY BE DESIGNATED IN WRITING BY THE PARTY
ENTITLED TO RECEIVE SUCH
4
COMMUNICATION AS PROVIDED ABOVE.
EACH SUCH COMMUNICATION WILL BE EFFECTIVE
(I) IF DELIVERED BY HAND OR OVERNIGHT COURIER SERVICE, WHEN SUCH DELIVERY IS
MADE AT THE ADDRESS SPECIFIED ON THE SIGNATURE PAGE HERETO, OR (II) IF DELIVERED
BY FACSIMILE, WHEN SUCH FACSIMILE IS TRANSMITTED TO THE FACSIMILE NUMBER
SPECIFIED ON THE SIGNATURE PAGE HERETO AND APPROPRIATE CONFIRMATION IS RECEIVED.
(B)
ASSIGNMENT.
NEITHER THIS AGREEMENT NOR ANY
RIGHT, INTEREST OR OBLIGATION HEREUNDER MAY BE ASSIGNED BY ANY PARTY HERETO, IN
WHOLE OR PART (WHETHER BY OPERATION OF LAW OR OTHERWISE), WITHOUT THE PRIOR
WRITTEN CONSENT OF THE OTHER PARTY HERETO AND ANY ATTEMPT TO DO SO SHALL BE NULL
AND VOID; PROVIDED, THAT STOCKHOLDER MAY ASSIGN IT RIGHTS AND OBLIGATIONS
HEREUNDER, OTHER THAN ITS OBLIGATIONS UNDER SECTION 8, IN CONNECTION WITH ANY
TRANSFER OF VOTING SHARES THAT COMPLIES WITH THE TERMS OF SECTION 7.
(C)
SUCCESSORS AND ASSIGNS.
THE TERMS AND
CONDITIONS OF THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON
THE RESPECTIVE SUCCESSORS AND ASSIGNS OF THE PARTIES.
NOTHING IN THIS
AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY PARTY OTHER THAN
THE PARTIES HERETO OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS ANY RIGHTS,
REMEDIES, OBLIGATIONS, OR LIABILITIES UNDER OR BY REASON OF THIS AGREEMENT,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
(D)
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF