PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
THERETO HAVE BEEN INDUCED TO ENTER INTO THE ALLIANCE AGREEMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.02.
ARTICLE XII
Miscellaneous
SECTION 12.01.
SEVERABILITY.
IF ANY PROVISIONS OF THIS AGREEMENT OR ANY OF THE
OTHER ALLIANCE AGREEMENTS SHALL BE HELD TO BE ILLEGAL, INVALID OR UNENFORCEABLE,
THE PARTIES AGREE THAT SUCH PROVISIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT
PERMISSIBLE SO AS TO EFFECT THE INTENT OF THE PARTIES, AND THE VALIDITY,
LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OF THIS AGREEMENT OR ANY
OF THE OTHER ALLIANCE AGREEMENTS SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED
THEREBY.
IF NECESSARY TO EFFECT THE INTENT OF THE PARTIES, THE PARTIES WILL
NEGOTIATE IN GOOD FAITH TO AMEND THIS AGREEMENT OR ANY OF THE ALLIANCE
AGREEMENTS TO REPLACE THE UNENFORCEABLE LANGUAGE WITH ENFORCEABLE LANGUAGE WHICH
AS CLOSELY AS POSSIBLE REFLECTS SUCH INTENT.
SECTION 12.02.
AMENDMENTS.
THIS AGREEMENT AND EACH OTHER BASE ALLIANCE
AGREEMENT MAY BE AMENDED OR MODIFIED ONLY BY A WRITTEN INSTRUMENT SIGNED BY EACH
PARTY.
SECTION 12.03.
WAIVER.
ANY WAIVER BY A PARTY OF AN INSTANCE OF THE OTHER
PARTY'S NONCOMPLIANCE WITH ANY OBLIGATION OR RESPONSIBILITY HEREIN CONTAINED OR
CONTAINED IN ANOTHER ALLIANCE AGREEMENT SHALL BE IN WRITING AND SIGNED BY THE
WAIVING PARTY AND SHALL NOT BE DEEMED A WAIVER OF OTHER INSTANCES OF THE OTHER
PARTY'S NONCOMPLIANCE HEREUNDER.
SECTION 12.04.
NO ASSIGNMENT.
THIS AGREEMENT AND THE OTHER ALLIANCE AGREEMENTS
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES.
NOTHING IN THIS
AGREEMENT OR THE OTHER ALLIANCE AGREEMENTS SHALL CONFER ANY RIGHTS UPON ANY
PERSON OTHER THAN THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS (PROVIDED THAT IN NO EVENT SHALL THIS PROVISION AFFECT EITHER PARTY'S
OBLIGATIONS PURSUANT TO ARTICLE X).
NEITHER PARTY MAY ASSIGN THIS AGREEMENT OR
ANY OTHER ALLIANCE AGREEMENT OR ITS RIGHTS HEREUNDER OR THEREUNDER TO ANY PERSON
WITHOUT THE WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED THAT IT SHALL NOT BE
CONSIDERED AN ASSIGNMENT BY IBM IN THE EVENT THAT IBM DIVESTS A PORTION OF ITS
BUSINESS IN A MANNER THAT SIMILARLY AFFECTS ALL OF ITS CUSTOMERS. ANY ATTEMPTED
ASSIGNMENT OF THIS AGREEMENT OR THE OTHER ALLIANCE AGREEMENTS IN VIOLATION OF
THIS SECTION 12.04 SHALL BE VOID AND OF NO EFFECT; PROVIDED THAT (A) EITHER
PARTY MAY ASSIGN ANY OF ITS OBLIGATIONS UNDER THE BASE ALLIANCE AGREEMENTS TO
ANY OF ITS WHOLLY OWNED SUBSIDIARIES AND (B) EITHER PARTY MAY DELEGATE OR
SUBCONTRACT ITS DUTIES UNDER ANY BASE ALLIANCE AGREEMENT TO ANY OTHER PERSON.
NOTWITHSTANDING THE FOREGOING, IBM SHALL BE PERMITTED TO TRANSFER THE WARRANTS
AND THE WARRANT SHARES IN ACCORDANCE WITH SECTION 6 OF EACH OF THE WARRANT
AGREEMENTS, AND SUCH TRANSFEREES SHALL BE ENTITLED TO THE BENEFITS UNDER SUCH
WARRANT AGREEMENTS.
36
SECTION 12.05.
EXPENSES.
EXCEPT AS OTHERWISE EXPRESSLY