ADSK » Topics » GENERAL PROVISIONS

This excerpt taken from the ADSK 8-K filed May 2, 2008.

GENERAL PROVISIONS

9.1 Survival of Representations, Warranties and Covenants. The representations, warranties and covenants of the Company, Parent and Merger Sub contained in this Agreement shall terminate at the Effective Time, and only the covenants that by their terms survive the Effective Time shall so survive the Effective Time.

9.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial delivery service, or sent via telecopy (receipt confirmed) to the parties at the following addresses or telecopy numbers (or at such other address or telecopy numbers for a party as shall be specified by like notice):

 

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  (a)   if to Parent or Merger Sub, to:
   

Autodesk, Inc.

111 McInnis Parkway

San Rafael, California 94903

Attention: General Counsel

Telecopy No.: (415) 507-5100

    with copies (which shall not constitute notice) to:
    Wilson Sonsini Goodrich & Rosati
    Professional Corporation
    One Market Street
    Spear Tower, Suite 3300
    San Francisco, CA 94105
    Attention: Michael S. Ringler and Jason P. Sebring
    Telecopy No.: (415) 947-2099
  (b)   if to the Company (prior to the Closing), to:
    Moldflow Corporation
    492 Old Connecticut Path, Suite 401
    Framingham, Massachusetts 01701
    Attention: Vice President, General Counsel and Secretary
    Telecopy No.: (508) 358-5868
    with copies (which shall not constitute notice) to:
    Goodwin Procter LLP
    Exchange Place
    53 State Street
    Boston, MA 02109
    Attention:  

Stuart M. Cable, Esq.

James A. Matarese, Esq.

Danielle M. Lauzon, Esq.

    Telecopy No.:   (617) 523-1231

9.3 Assignment. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other parties. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

9.4 Entire Agreement. This Agreement, the agreements, documents and other instruments among the parties hereto as contemplated by or referred to herein, including the Company Disclosure Schedule and Tender and Voting Agreements, the Confidentiality Agreement and the Exclusivity Agreement (as amended pursuant to Section 6.10) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof.

 

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9.5 Third Party Beneficiaries. Except as set forth in or contemplated by the provisions of Section 6.14, this Agreement is not intended to (and shall not) confer upon any other Person any rights or remedies hereunder, whether as third party beneficiaries or otherwise.

9.6 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

9.7 Other Remedies. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.

9.8 Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.

9.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof.

9.10 Consent to Jurisdiction. Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any state or federal court located within New Castle County, State of Delaware in connection with any matter based upon or arising out of this Agreement or the transactions contemplated hereby, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and process. Each party hereto hereby agrees not to commence any legal proceedings relating to or arising out of this Agreement or the transactions contemplated hereby (including the Offer and the Merger) in any jurisdiction or courts other than as provided herein.

9.11 WAIVER OF JURY TRIAL. EACH OF PARENT, COMPANY AND MERGER SUB HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY

 

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JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, COMPANY OR MERGER SUB IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

9.12 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart.

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