Steven D. Singer, Esq.
Fax:
(617) 526-5000
To the Investor:
Novartis Pharma AG
Lichtstraße 35
CH 4058 Basel BS
Attention Peter Rupprecht
Fax:
+41 61 3245372
18
With a copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eight Avenue
New York, New York, 10019
Attention:
Philip A. Gelston, Esq.
Fax:
(212) 474-3700
22.
Miscellaneous.
(A)
THIS AGREEMENT AND THE OTHER WRITINGS REFERRED TO HEREIN OR DELIVERED
PURSUANT HERETO WHICH FORM A PART HEREOF CONTAIN THE ENTIRE AGREEMENT AMONG THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ALL
PRIOR AND CONTEMPORANEOUS ARRANGEMENTS OR UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, WITH RESPECT THERETO.
(B)
THE RIGHTS, POWERS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT ARE
CUMULATIVE AND NOT EXCLUSIVE OF ANY OTHER RIGHT, POWER OR REMEDY WHICH SUCH
PARTIES MAY HAVE UNDER ANY OTHER AGREEMENT OR LAW.
NO SINGLE OR PARTIAL
ASSERTION OR EXERCISE OF ANY RIGHT, POWER OR REMEDY OF A PARTY HEREUNDER SHALL
PRECLUDE ANY OTHER OR FURTHER ASSERTION OR EXERCISE THEREOF.
(C)
THIS AGREEMENT MAY BE AMENDED, AND COMPLIANCE WITH ANY PROVISION OF THIS
AGREEMENT MAY BE OMITTED OR WAIVED, ONLY BY THE WRITTEN AGREEMENT OF THE COMPANY
AND THE HOLDERS OF A MAJORITY OF THE REGISTRABLE SHARES, PROVIDED THAT
SECTIONS 11, 17 AND 18 MAY BE AMENDED, AND COMPLIANCE THEREOF MAY BE OMITTED OR
WAIVED, ONLY BY THE WRITTEN AGREEMENT OF THE COMPANY AND THE INVESTOR.
(D)
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT RELATING THERETO, AND EACH OF THE PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY (I) AGREES NOT TO COMMENCE ANY SUCH ACTION OR
PROCEEDING EXCEPT IN SUCH COURTS, (II) AGREES THAT ANY CLAIM IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH COURTS,
(III) WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
ACTION OR PROCEEDING IN SUCH COURTS, AND (IV) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAWS, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN SUCH COURTS.
EACH OF THE PARTIES HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAWS.
EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN