SHALL TERMINATE AND SHALL HAVE NO FURTHER FORCE OR EFFECT AS OF THE
EXPIRATION DATE.
6.
SEVERABILITY. IF ANY TERM OR OTHER PROVISION OF THIS AGREEMENT IS
INVALID, ILLEGAL OR INCAPABLE OF BEING ENFORCED UNDER APPLICABLE LAW, ALL OTHER
CONDITIONS AND PROVISIONS OF THIS AGREEMENT SHALL NEVERTHELESS REMAIN IN FULL
FORCE AND EFFECT SO LONG AS THE ECONOMIC OR LEGAL SUBSTANCE OF THE TRANSACTIONS
CONTEMPLATED HEREBY IS NOT AFFECTED IN ANY MANNER MATERIALLY
4
ADVERSE TO ANY PARTY. UPON SUCH DETERMINATION THAT ANY TERM OR OTHER PROVISION
IS INVALID, ILLEGAL OR INCAPABLE OF BEING ENFORCED, THIS AGREEMENT SHALL
AUTOMATICALLY BE DEEMED TO BE MODIFIED SO AS TO EFFECT THE ORIGINAL INTENT OF
THE PARTIES AS CLOSELY AS POSSIBLE IN ORDER THAT THE TRANSACTIONS CONTEMPLATED
HEREBY BE CONSUMMATED AS ORIGINALLY CONTEMPLATED TO THE GREATEST EXTENT
POSSIBLE.
7.
BINDING EFFECT AND ASSIGNMENT. NEITHER THIS AGREEMENT NOR ANY OF
THE RIGHTS, INTERESTS OR OBLIGATIONS UNDER THIS AGREEMENT SHALL BE ASSIGNED, IN
WHOLE OR IN PART, BY OPERATION OF LAW OR OTHERWISE BY ANY PARTY WITHOUT THE
PRIOR WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED, HOWEVER, PARENT MAY, IN ITS
SOLE DISCRETION, ASSIGN ITS RIGHTS AND OBLIGATIONS HEREUNDER TO ANY DIRECT OR
INDIRECT WHOLLY-OWNED SUBSIDIARY OF PARENT. ANY ASSIGNMENT IN VIOLATION OF THE
PRECEDING SENTENCE SHALL BE VOID. SUBJECT TO THE PRECEDING SENTENCES, THIS
AGREEMENT WILL BE BINDING UPON, INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
8.
AMENDMENT AND MODIFICATION. THIS AGREEMENT MAY NOT BE AMENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED ON BEHALF OF EACH OF THE PARTIES.
9.
SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. THE PARTIES HERETO
ACKNOWLEDGE THAT PARENT WILL BE IRREPARABLY HARMED AND THAT THERE WILL BE NO
ADEQUATE REMEDY AT LAW FOR A VIOLATION OF ANY OF THE COVENANTS OR AGREEMENTS OF
EACH STOCKHOLDER SET FORTH HEREIN. THEREFORE, IT IS AGREED THAT, IN ADDITION TO
ANY OTHER REMEDIES THAT MAY BE AVAILABLE TO PARENT UPON ANY SUCH VIOLATION,
PARENT SHALL HAVE THE RIGHT TO ENFORCE SUCH COVENANTS AND AGREEMENTS BY SPECIFIC
PERFORMANCE, INJUNCTIVE RELIEF OR BY ANY OTHER MEANS AVAILABLE TO PARENT AT LAW
OR IN EQUITY AND EACH SUCH STOCKHOLDER HEREBY WAIVES ANY AND ALL DEFENSES WHICH
COULD EXIST IN ITS FAVOR IN CONNECTION WITH SUCH ENFORCEMENT AND WAIVES ANY
REQUIREMENT FOR THE SECURITY OR POSTING OF ANY BOND IN CONNECTION WITH SUCH
ENFORCEMENT.
10.
NOTICES. ALL NOTICES, REQUESTS, CLAIMS, DEMANDS AND OTHER
COMMUNICATIONS UNDER THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED
GIVEN IF DELIVERED PERSONALLY, VIA FACSIMILE (WHICH IS CONFIRMED) OR SENT BY
OVERNIGHT COURIER (PROVIDING PROOF OF DELIVERY) TO THE PARTIES AT THE FOLLOWING
ADDRESSES (OR AT SUCH OTHER ADDRESS FOR A PARTY AS SHALL BE SPECIFIED BY LIKE
NOTICE):
(a)
If to Stockholder, to:
The address set forth opposite such Stockholder's name on Exhibit A
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY
10019
Attn:
Douglas