Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04—cv—00148-GI\/IS Document 53-2 Filed 07/28/2005 Page1 0f3
EXHIBIT

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SECTION 13.03. Fees and Expenses. Except as otherwise provided in this
Agreement, all costs and expenses incurred in conrtection with tl1is Agreement ‘
shall be paid by the party incurring such cost or expense. If the Closing occurs,
Buyer and Seller shall share equally the cost of obtaining the opinion referenced in
Section 10.01 (c). ‘
SECTION 13.04. Successor: ¢:rr1dAs.rigru‘. The provisions of this
Agreement shall be binding upon and inure to the beneiit ofthe parties hereto and
their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, except that Buyer may transfer or I
assign, in whole or from time to time in part, to one or more of its affiliates, the
right to purchase all or a portion ofthe Purchased Assets; but no such transfer or
assignment will relieve Buyer of its obligations hereunder. ‘ _
Sscrtou i3.05. Governing Low. This Agreement shall be govemed by '
and construed in accordance with the law of the`State of New York without regard
to the conflicts of law rules of such state. _
Sscrtou 13.06. Jurisdiction. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action 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 in
the United States District Court for the Southern District of New York or any New
York State court sitting in New York City, so long as such courts shall have
subject rnatterjurisdiction over such suit, action or proceeding, and each of the
parties hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying ofthe venue of any such suit, action or
proceeding 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 forum. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party as
' provided in Section 13.01 shall be deemed effective service of process on such
pany- . ·
Sscnou 13.07. WAIVER OF./URY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR TI-IE TRANSACTIONS
; CONTEMPLATED HEREBY.
(NY) 05 86M66lAPNuseL:gt.wpd .
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SECUON 13.08. Comnerpnrrs; Third Perry Beneficiaries. This ` i
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were upon.
the same instrument. This Agreement shall become effective when each party
, hereto shall have received a counterpart hereof signed by the other party hereto.
No provision of this Agreement is intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
SECTION 13.09. Entire Agreement. This Agreement, the Fulfillment
Agreement, the Services, Supply and Sales Agreement, the agreements . _
contemplated by Section 7.07 andthe Conridentiality Agreement constitute the
. entire agreement between the parties with respect to the subject matter of this ‘
Agreement and supersedes all prior agreements and understandings, both oral and
._ written, between the parties with respect to the subject matter of this Agreement. _
SECTION 13.10. Bulk Sales Laws. Buyer and Seller each hereby waive 1
compliance by Seller with the provisions ofthe "bu1k sales", "bulk transfer" or
similar laws of any state.
SECTION 13.11. Parent Guarantee. Parent hereby agrees to guarantee
Buyers obligations to Seller, in accordance with the terms of this Agreement, for
payment of the Purchase Price under Article 2 and any indemnification amounts
under Section ll.02(b).
SECTION 13.12. Schedules. Reference to any Schedule in Article 3 shall ·
be deemed a reference to the applicable section ofthe disclosure schedule
provided by Seller to Buyer on or prior to the date hereof.
:· - -· _ .
(NY) ¤5l6U06ElA.FA!uset•gtwpd
`an

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