(B)
EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT DAMAGES WILL NOT
BE AN ADEQUATE REMEDY FOR ANY MATERIAL BREACH OR VIOLATION OF THIS AGREEMENT IF
SUCH MATERIAL BREACH OR VIOLATION WOULD CAUSE IMMEDIATE AND IRREPARABLE HARM (AN
"IRREPARABLE BREACH").
ACCORDINGLY, IN THE EVENT OF A THREATENED OR ONGOING
IRREPARABLE BREACH, EACH PARTY HERETO SHALL BE ENTITLED TO SEEK, IN ANY STATE OR
FEDERAL COURT IN THE STATE OF DELAWARE, EQUITABLE RELIEF OF A KIND APPROPRIATE
IN LIGHT OF THE NATURE OF THE ONGOING OR THREATENED IRREPARABLE BREACH, WHICH
RELIEF MAY INCLUDE, WITHOUT LIMITATION, SPECIFIC PERFORMANCE OR INJUNCTIVE
RELIEF.
SUCH REMEDIES SHALL NOT BE THE PARTIES' EXCLUSIVE REMEDIES, BUT SHALL
BE IN ADDITION TO ALL OTHER REMEDIES PROVIDED IN THIS AGREEMENT.
9.9
AMENDMENTS.
NO PROVISION OF THIS AGREEMENT MAY BE WAIVED, CHANGED OR
MODIFIED, OR THE DISCHARGE THEREOF ACKNOWLEDGED ORALLY, BUT ONLY BY AN AGREEMENT
IN WRITING SIGNED BY THE PARTY AGAINST WHICH THE ENFORCEMENT OF ANY WAIVER,
CHANGE, MODIFICATION OR DISCHARGE IS SOUGHT.
9.10
EXPENSES.
EACH PARTY WILL BEAR ITS OWN COSTS AND EXPENSES IN CONNECTION
WITH THIS AGREEMENT.
9.11
ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE
BENEFIT OF THE PARTIES AND THEIR SUCCESSORS AND PERMITTED ASSIGNS.
EXCEPT AS
OTHERWISE SET FORTH IN THIS AGREEMENT, THE COMPANY MAY NOT ASSIGN THIS AGREEMENT
OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE
PURCHASER, EXCEPT IN CONNECTION WITH A CHANGE IN CONTROL OF THE COMPANY.
THE
PURCHASER MAY DESIGNATE ONE OF ITS SUBSIDIARIES TO HOLD THE SHARES AND MAY
ASSIGN ITS RIGHTS UNDER THIS AGREEMENT TO ANY PERSON TO WHOM THE PURCHASER
ASSIGNS OR TRANSFERS ANY SHARES, PROVIDED (I) SUCH TRANSFEROR AGREES IN WRITING
WITH THE TRANSFEREE OR ASSIGNEE TO ASSIGN SUCH RIGHTS, AND A COPY OF SUCH
AGREEMENT IS FURNISHED TO THE COMPANY AFTER
25
SUCH ASSIGNMENT, (II) THE COMPANY IS FURNISHED WITH WRITTEN NOTICE OF THE NAME
AND ADDRESS OF SUCH TRANSFEREE OR ASSIGNEE, (III)
SUCH TRANSFEREE AGREES IN
WRITING TO BE BOUND, WITH RESPECT TO THE TRANSFERRED SHARES, BY THE PROVISIONS
HEREOF THAT APPLY TO THE PURCHASER AND (IV) SUCH TRANSFER SHALL HAVE BEEN MADE
IN ACCORDANCE WITH THE APPLICABLE REQUIREMENTS OF THIS AGREEMENT AND WITH ALL
LAWS APPLICABLE THERETO.
9.12
SURVIVAL.
THE RESPECTIVE REPRESENTATIONS AND WARRANTIES GIVEN BY THE
PARTIES HERETO, AND THE OTHER COVENANTS AND AGREEMENTS CONTAINED HEREIN, SHALL
SURVIVE THE SECOND CLOSING DATE AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN FOR A PERIOD OF TWO YEARS, WITHOUT REGARD TO ANY
INVESTIGATION MADE BY ANY PARTY.
9.13
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS
CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO RESPECTING THE
SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS, NEGOTIATIONS,
UNDERSTANDINGS, REPRESENTATIONS AND STATEMENTS RESPECTING THE SUBJECT MATTER
HEREOF, WHETHER WRITTEN OR ORAL.
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
as of the day and year first above written.
Company
ALIGN TECHNOLOGY, INC.
By:
/s/ Thomas M. Prescott
Name:
Thomas M. Prescott
Title: