TO LANDMARK AT LAW OR IN EQUITY, LANDMARK SHALL BE ENTITLED TO
SPECIFIC PERFORMANCE OF THIS AGREEMENT BY SUCH SIGNATORY UPON APPLICATION TO ANY
COURT HAVING JURISDICTION OVER THE PARTIES.
ACCORDINGLY, EACH SIGNATORY TO THIS
AGREEMENT:
(A) IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW, ANY DEFENSE
THAT HE OR SHE MIGHT HAVE BASED ON THE ADEQUACY OF A REMEDY AT LAW THAT MIGHT BE
ASSERTED AS A BAR TO SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER EQUITABLE
RELIEF; AND (B) AGREES TO THE GRANTING OF INJUNCTIVE RELIEF WITHOUT THE POSTING
OF ANY BOND AND FURTHER AGREES THAT IF ANY BOND SHALL BE REQUIRED, SUCH BOND
SHALL BE IN A NOMINAL AMOUNT.
SECTION 7.
AMENDMENT AND MODIFICATION.
THIS AGREEMENT MAY BE AMENDED, MODIFIED OR SUPPLEMENTED AT ANY TIME BY THE
WRITTEN APPROVAL OF SUCH AMENDMENT, MODIFICATION OR SUPPLEMENT BY ALL OF THE
SIGNATORIES TO THIS AGREEMENT.
SECTION 8.
ENTIRE AGREEMENT.
THIS
AGREEMENT EVIDENCES THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT
TO THE MATTERS PROVIDED FOR HEREIN AND THERE ARE NO AGREEMENTS, REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO THE MATTERS PROVIDED FOR HEREIN OTHER THAN THOSE
SET FORTH HEREIN AND IN THE MERGER AGREEMENT AND WRITTEN AGREEMENTS RELATED
THERETO.
EXCEPT FOR THE MERGER AGREEMENT, THIS AGREEMENT SUPERSEDES ANY
AGREEMENTS AMONG ANY OF FIRST MANHATTAN, ITS SHAREHOLDERS, LANDMARK OR
ACQUISITION CORP CONCERNING THE ACQUISITION, DISPOSITION OR CONTROL OF ANY
VOTING STOCK.
SECTION 9.
ABSENCE OF CONTROL.
SUBJECT
TO ANY SPECIFIC PROVISIONS OF THIS AGREEMENT, IT IS THE INTENT OF THE PARTIES TO
THIS AGREEMENT THAT NEITHER LANDMARK NOR ACQUISITION CORP BY REASON OF THIS
AGREEMENT SHALL BE DEEMED (UNTIL CONSUMMATION OF THE CONTEMPLATED TRANSACTIONS)
TO CONTROL, DIRECTLY OR INDIRECTLY, ANY OTHER PARTY AND SHALL NOT EXERCISE, OR
BE DEEMED TO EXERCISE, DIRECTLY OR INDIRECTLY, A CONTROLLING INFLUENCE OVER THE
MANAGEMENT OR POLICIES OF ANY SUCH OTHER PARTY.
PURSUANT TO SECTION 2.12 IN THE
MERGER AGREEMENT, NOTHING CONTAINED HEREIN SHALL BE DEEMED TO GRANT LANDMARK AN
OWNERSHIP INTEREST IN ANY SHARES OF VOTING STOCK.
SECTION 10.
INFORMED ACTION.
EACH SIGNATORY
TO THIS AGREEMENT ACKNOWLEDGES THAT HE OR SHE HAS HAD AN OPPORTUNITY TO BE
ADVISED BY COUNSEL OF HIS OR HER CHOOSING WITH REGARD TO THIS AGREEMENT AND THE
TRANSACTIONS AND CONSEQUENCES CONTEMPLATED HEREBY.
EACH SIGNATORY TO THIS
AGREEMENT FURTHER ACKNOWLEDGES THAT HE OR SHE HAS RECEIVED A COPY OF THE MERGER
AGREEMENT AND IS FAMILIAR WITH ITS TERMS.
SECTION 11.
SEVERABILITY.
THE PARTIES AGREE
THAT IF ANY PROVISION OF THIS AGREEMENT SHALL UNDER ANY CIRCUMSTANCES BE DEEMED
INVALID OR INOPERATIVE, THIS AGREEMENT SHALL BE
4
CONSTRUED WITH THE INVALID OR INOPERATIVE PROVISIONS DELETED AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES SHALL BE CONSTRUED AND ENFORCED ACCORDINGLY.
SECTION 12.
COUNTERPARTS.
THIS AGREEMENT MAY
BE EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL, BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME
INSTRUMENT.
SECTION 13.
GOVERNING LAW.
ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND
THE PERFORMANCE OF