OF
SELLER SO TO OBTAIN SUCH CONSENTS SHALL BE (I) THE ADJUSTMENT IN CALCULATION OF
WHEN THE PURCHASE DATE FALLS PURSUANT TO SECTION 1.3 OF THIS AGREEMENT AND THE
CORRESPONDING EXTENSION OF THE BUYER EXERCISE PERIOD AS DEFINED IN
SECTION 1.2(A) OF THIS AGREEMENT, AND (II) THE APPLICATION
(TO THE EXTENT
RELEVANT UNDER THE CIRCUMSTANCES) OF THE PROVISIONS OF THE LAST SENTENCE OF
SECTION 1.2(C) OF THIS AGREEMENT AND SECTION 1.6 OF THIS AGREEMENT.
III.
MISCELLANEOUS.
A.
CONFIDENTIALITY.
THE TERMS OF SECTION 5.5 OF THE PURCHASE
AGREEMENT AND THE TERMS OF THE CONFIDENTIALITY AGREEMENT (INCLUDING THE
EXCLUSION, EXCEPT FOR ITEMS PROTECTED FROM DISCLOSURE BY THE ATTORNEY-CLIENT
PRIVILEGE OR WORK PRODUCT DOCTRINE, OF INFORMATION RELATING TO THE TAX STRUCTURE
OR TAX TREATMENT OF THE TRANSACTIONS CONTEMPLATED, BY THIS AGREEMENT) ARE HEREBY
INCORPORATED BY REFERENCE AND BOTH THE BUYER AND THE SELLER AGREE TO BE BOUND
THEREBY AS IF SUCH TERMS WERE SET FORTH HEREIN IN THEIR ENTIRETY.
B.
HEADINGS.
THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT CONTROL OR AFFECT THE MEANING OR CONSTRUCTION OF
ANY PROVISIONS HEREOF.
C.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
AND UNDERSTANDING OF THE PARTIES HERETO IN RESPECT OF THE SUBJECT MATTER HEREOF,
AND THERE ARE NO RESTRICTIONS, PROMISES, REPRESENTATIONS, WARRANTIES, COVENANTS,
OR UNDERTAKINGS WITH RESPECT TO THE SUBJECT MATTER HEREOF, OTHER THAN THOSE
EXPRESSLY SET FORTH OR REFERRED TO HEREIN.
D.
NOTICES. ANY NOTICE, REQUEST, INSTRUCTION OR OTHER DOCUMENT TO BE
GIVEN HEREUNDER BY ANY PARTY TO THE OTHER PARTIES SHALL BE IN WRITING AND SHALL
BE DEEMED GIVEN OR DELIVERED WHEN DELIVERED IN THE MANNER AND TO THE ADDRESS SET
FORTH IN SECTION 12.3 OF THE PURCHASE AGREEMENT OR TO SUCH OTHER PLACE AND WITH
SUCH OTHER COPIES AS EITHER PARTY MAY DESIGNATE AS TO ITSELF BY WRITTEN NOTICE
TO THE OTHERS.
ANY FAILURE BY ANY PARTY TO DELIVER COPIES OF ANY NOTICE SHALL
NOT, IN ITSELF, AFFECT THE VALIDITY OF SUCH NOTICE IF OTHERWISE PROPERLY MADE TO
THE OTHER PARTY.
E.
SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF THIS AGREEMENT SHALL
BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE HEIRS, SUCCESSORS AND PERMITTED ASSIGNS.
EXCEPT AS PROVIDED IN THIS
SECTION 3.5, NEITHER SELLER NOR BUYER MAY ASSIGN ITS RIGHTS UNDER THIS
AGREEMENT.
EITHER SELLER (SUBJECT TO COMPLIANCE BY SELLER WITH SECTION 2.3) OR
BUYER MAY, WITHOUT CONSENT, ASSIGN ITS RIGHTS HEREUNDER TO ONE OR MORE OF ITS
6
AFFILIATES.
BUYER MAY, WITHOUT CONSENT, ASSIGN ITS RIGHTS HEREUNDER TO ANY
PURCHASER OF AN INTEREST IN THE COMPANY THAT THE BUYER OWNED AT ANY TIME PRIOR
TO THE PURCHASE DATE.
F.
SPECIFIC PERFORMANCE.
EACH OF THE PARTIES HERETO ACKNOWLEDGES
AND AGREES THAT IN THE EVENT OF ANY BREACH OF THIS AGREEMENT, THE NON-BREACHING
PARTY OR PARTIES WOULD BE IRREPARABLY HARMED AND COULD NOT BE MADE WHOLE BY
MONETARY DAMAGES.
IT IS ACCORDINGLY AGREED THAT THE PARTIES HERETO SHALL AND DO
HEREBY WAIVE THE DEFENSE IN ANY ACTION FOR SPECIFIC PERFORMANCE