ADDITION,
VISION-SCIENCES SHALL NOT COMPLETE OR FACILITATE AN ACQUISITION BY ANY PERSON OR
GROUP OF PERSONS OF 50% OR MORE OF THE VOTING SECURITIES OF VISION-SCIENCES
WITHOUT FIRST (X) OBTAINING FROM THE PURCHASER A WRITTEN STATEMENT ACKNOWLEDGING
VISION-SCIENCES' OBLIGATIONS PURSUANT TO THIS AGREEMENT AND AGREEING NOT TO TAKE
ANY ACTION THAT WOULD CAUSE VISION-SCIENCES TO BREACH ANY OF ITS OBLIGATIONS
HEREUNDER, AND (Y) PROMPTLY PROVIDING A COPY OF SUCH WRITTEN COMMITMENT TO
MEDTRONIC.
7.9)
TITLES AND HEADINGS; CONSTRUCTION.
THE TITLES AND HEADINGS TO
SECTIONS HEREIN AND SCHEDULES HERETO ARE INSERTED FOR THE CONVENIENCE OF
REFERENCE ONLY AND ARE NOT INTENDED TO BE A PART OF OR TO AFFECT THE MEANING OR
INTERPRETATION OF THIS AGREEMENT.
THIS AGREEMENT SHALL BE CONSTRUED WITHOUT
REGARD TO ANY PRESUMPTION OR OTHER RULE REQUIRING CONSTRUCTION HEREOF AGAINST
THE PARTY CAUSING THIS AGREEMENT TO BE DRAFTED.
NOTHING IN THIS AGREEMENT,
EXPRESSED OR IMPLIED, IS INTENDED TO CONFER ON ANY PERSON OTHER THAN THE PARTIES
HERETO OR THEIR RESPECTIVE PERMITTED SUCCESSORS OR ASSIGNS, ANY RIGHTS,
REMEDIES, OBLIGATIONS OR LIABILITIES UNDER OR BY REASON OF THIS AGREEMENT.
7.10)
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS HELD INVALID,
UNENFORCEABLE OR VOID BY A COURT OF COMPETENT JURISDICTION, THE REMAINING
PROVISIONS SHALL NONETHELESS BE ENFORCEABLE ACCORDING TO THEIR TERMS.
IN SUCH
CASE, THE PARTIES AGREE TO NEGOTIATE IN GOOD FAITH TO CREATE AN ENFORCEABLE
CONTRACTUAL PROVISION TO ACHIEVE THE PURPOSE OF THE INVALID PROVISION.
FURTHER,
IF ANY PROVISION IS HELD TO BE OVERBROAD AS WRITTEN, SUCH PROVISION SHALL BE
DEEMED AMENDED TO NARROW ITS APPLICATION TO THE EXTENT NECESSARY TO MAKE THE
PROVISION ENFORCEABLE ACCORDING TO APPLICABLE LAW AND SHALL BE ENFORCED AS
AMENDED.
7.11)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AS ORIGINAL AND ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
7.12)
CONFIDENTIALITY.
EACH PARTY WILL, FOR A PERIOD OF FIVE (5) YEARS,
(I) KEEP CONFIDENTIAL AND NOT DISCLOSE TO OTHERS, ALL CONFIDENTIAL INFORMATION
OF THE OTHER PARTY, AND (II) NOT USE ANY OF THE OTHER PARTY'S CONFIDENTIAL
INFORMATION FOR ITS OWN DIRECT OR INDIRECT BENEFIT, OR THE DIRECT OR INDIRECT
BENEFIT OF ANY THIRD PARTY, EXCEPT THAT A PARTY MAY USE THE OTHER PARTY'S
CONFIDENTIAL INFORMATION TO THE EXTENT NECESSARY TO PERFORM ITS DUTIES AND
OBLIGATIONS, OR TO ENFORCE OR EXERCISE SUCH PARTY'S RIGHTS, UNDER THIS
AGREEMENT.
THE FOREGOING SHALL NOT PROHIBIT DISCLOSURES: (X) MADE TO THE
RECEIVING PARTY'S SUB-DISTRIBUTORS, EMPLOYEES OR AGENTS WHO HAVE A "NEED TO
KNOW" THE OTHER PARTY'S CONFIDENTIAL INFORMATION TO THE EXTENT SUCH DISCLOSURE
IS
16
necessary to perform such party's duties and obligations, or to enforce such
party's rights, under this Agreement, provided that such sub-distributors,
employees or agents agree in writing or are otherwise compelled to comply with
the obligations of this Section 7.12, and the receiving party remains directly
responsible to the disclosing party for their compliance; or (y) compelled to be
made by any requirement of law or pursuant to any legal, regulatory or
investigative proceeding