TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE AN
ORIGINAL, BUT ALL OF WHICH, WHEN TAKEN TOGETHER, SHALL CONSTITUTE BUT ONE
INSTRUMENT.
THIS AGREEMENT SHALL BECOME EFFECTIVE WHEN ONE OR MORE COUNTERPARTS
HAVE BEEN SIGNED BY EACH PARTY HERETO AND DELIVERED TO THE OTHER PARTIES.
11.6
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, THE PROVISIONS HEREOF SHALL INURE TO THE BENEFIT OF, AND BE BINDING
UPON, THE SUCCESSORS, ASSIGNS, HEIRS, EXECUTORS AND ADMINISTRATORS OF THE
PARTIES HERETO.
11.7
ENTIRE AGREEMENT.
THIS AGREEMENT AND OTHER DOCUMENTS DELIVERED
PURSUANT HERETO, INCLUDING THE EXHIBITS, CONSTITUTE THE FULL AND ENTIRE
UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES WITH REGARD TO THE SUBJECTS
HEREOF AND THEREOF AND SUPERSEDE IN THEIR ENTIRETY ANY PRIOR OR CONTEMPORANEOUS
ORAL OR WRITTEN AGREEMENTS AND UNDERSTANDINGS BETWEEN OR AMONG THE PARTIES WITH
RESPECT TO SUCH SUBJECT MATTER.
11.8
PAYMENT OF FEES AND EXPENSES; ATTORNEY'S FEES.
EACH OF THE COMPANY
AND THE PURCHASERS SHALL BEAR ITS OWN EXPENSES AND LEGAL FEES INCURRED ON ITS
BEHALF WITH RESPECT TO THE NEGOTIATION, DOCUMENTATION, EXECUTION AND DELIVERY OF
THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY;
PROVIDED, HOWEVER, THAT THE COMPANY SHALL REIMBURSE MDS FOR REASONABLE LEGAL
FEES AND EXPENSES OF GIBSON, DUNN & CRUTCHER LLP, COUNSEL TO MDS, INCURRED IN
CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT AND THE CLOSING OF THE
PURCHASE AND SALE OF THE SECURITIES CONTEMPLATED HEREBY AND THE COSTS AND
EXPENSES INCURRED BY MDS IN CONNECTION WITH ITS DUE DILIGENCE INVESTIGATION OF
THE COMPANY IN AN AMOUNT NOT TO EXCEED $60,000 IN THE AGGREGATE FOR ALL SUCH
LEGAL FEES AND EXPENSES AND DUE DILIGENCE COSTS AND EXPENSES UPON PRESENTATION
OF AN INVOICE OR OTHER REASONABLE SUPPORTING DOCUMENTATION THEREFOR; PROVIDED,
FURTHER, HOWEVER, THAT THE COMPANY ALSO SHALL BEAR THOSE FEES, COSTS AND
EXPENSES OF
33
REGISTRATION REFERENCED IN SECTION 8.1(D), WHICH AMOUNTS SHALL BE IN ADDITION TO
AND SHALL NOT REDUCE ANY AMOUNTS PAYABLE PURSUANT TO THE PRECEDING PROVISO.
IF
ANY ACTION AT LAW OR IN EQUITY IS NECESSARY TO ENFORCE OR INTERPRET THE TERMS OF
THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO REASONABLE ATTORNEY'S
FEES, COSTS AND NECESSARY DISBURSEMENTS IN ADDITION TO ANY OTHER RELIEF TO WHICH
SUCH PARTY MAY BE ENTITLED.
11.9
JURISDICTION.
ANY ACTION, SUIT OR PROCEEDING SEEKING TO ENFORCE
ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH,
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT
EXCLUSIVELY IN THE FEDERAL OR STATE COURTS LOCATED IN THE STATE OF NEW YORK, AND
EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH
SUIT, ACTION OR PROCEEDING AND HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUCH COURT OR THAT ANY SUCH SUIT,
ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT