EXECUTION COPY
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EXHIBIT 2.8
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TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (THE "AGREEMENT") DATED AS OF THE CLOSING
DATE AND BETWEEN MATHSOFT, INC., A MASSACHUSETTS CORPORATION ("SELLER") AND
MATHSOFT ENGINEERING & EDUCATION, INC., A DELAWARE CORPORATION ("MEE").
CAPITALIZED TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS
ASCRIBED TO THEM IN THE PURCHASE AGREEMENT (AS DEFINED BELOW).
WHEREAS, MEE IS ACQUIRING FROM SELLER VARIOUS INTELLECTUAL PROPERTY RIGHTS
IN ANTICIPATION OF THE PURCHASE OF ALL OF THE STOCK OF MEE BY MATHSOFT CORPORATE
HOLDINGS, INC. (THE "TRANSACTION") PURSUANT TO A STOCK PURCHASE AGREEMENT AMONG
SELLER, MEE AND MATHSOFT CORPORATE HOLDINGS, INC. (THE "STOCK PURCHASE
AGREEMENT");
WHEREAS, IN CONNECTION WITH THE TRANSACTION, CERTAIN TRADEMARKS, SERVICE
MARKS, TRADE NAMES AND TRADE DRESS ARE BEING TRANSFERRED FROM SELLER TO MEE (THE
"RELATED MARKS");
WHEREAS, FOLLOWING THE TRANSACTION, MEE WILL CONDUCT THE BUYER BUSINESS (AS
DEFINED IN THE NON-COMPETITION AGREEMENT OF EVEN DATE HEREWITH), USING THE NAME
AND XXXX "MATHSOFT" (THE "XXXX");
WHEREAS, SELLER DESIRES TO CONTINUE TO USE THE NAME "MATHSOFT" AS ITS
CORPORATE NAME, PENDING STOCKHOLDER APPROVAL OF A CHANGE OF NAME AND THEREFORE
DESIRES TO RETAIN RIGHTS TO THE XXXX PENDING SUCH APPROVAL, AND TO USE THE
TRADEMARK AND TRADE NAME "MATHSOFT" FOR A LIMITED PERIOD SOLELY FOR THE PURPOSE
OF CONSUMING EXISTING INVENTORY OF COLLATERAL, PACKAGING AND PROMOTIONAL
MATERIALS, INCLUDING ADVERTISEMENTS CONTRACTED FOR AS OF THE DATE OF CLOSING;
AND
WHEREAS, SELLER DESIRES TO LICENSE THE XXXX TO MEE PENDING ITS CORPORATE
NAME CHANGE, AT WHICH POINT IT WILL TRANSFER ALL REMAINING RIGHT, TITLE AND
INTEREST IN AND TO THE XXXX TO MEE.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH IN THE
STOCK PURCHASE AGREEMENT AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE SELLER AND MEE
HEREBY AGREE AS FOLLOWS:
1. GRANT OF LICENSE. SELLER HEREBY GRANTS TO MEE AN IRREVOCABLE, PERPETUAL,
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EXCLUSIVE, ROYALTY-FREE, WORLDWIDE RIGHT AND LICENSE (THE "LICENSE") TO USE THE
XXXX IN THE OPERATION OF THE BUYER BUSINESS, INCLUDING WITHOUT LIMITATION USE OF
THE XXXX IN ITS CORPORATE NAME AND IN THE NAMES OF ITS AFFILIATES, WITH FULL
RIGHT TO SUBLICENSE ANY OR ALL OF SUCH RIGHTS, ALL ON THE TERMS AND CONDITIONS
SET FORTH HEREIN.
2. RESERVED RIGHTS.
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2.1 SELLER AND MEE HEREBY ACKNOWLEDGE AND AGREE THAT SELLER SHALL HAVE
THE CONTINUING RIGHT, TO USE THE XXXX: A) IN ITS CORPORATE NAME; B) FOR A
PERIOD OF UP TO SIX (6) MONTHS FOLLOWING THE CLOSING (THE "PHASE OUT PERIOD"),
AS A TRADEMARK ONLY IN CONNECTION WITH CONTINUED DISTRIBUTION OF PRODUCTS ON
SELLER'S REMAINING INVENTORY OF COLLATERAL, PACKAGING, USER MANUALS, AND
PROMOTIONAL MATERIALS AND IN ADVERTISING OR PRINTING OF USER MANUALS CONTRACTED
FOR AS OF THE DATE OF CLOSING, AND NOT FOR ANY OTHER PURPOSE. NOTHING IN THIS
AGREEMENT IS INTENDED TO PERMIT SELLER TO USE THE RELATED MARKS FOR ANY PURPOSE.
SELLER COVENANTS NOT TO SUBLICENSE ITS RESERVED RIGHTS TO ANY OTHER PARTY, TO
GRANT ANY LIEN, SECURITY INTEREST OR ENCUMBRANCE ON THE XXXX, OR TAKE ANY OTHER
ACTION DETRIMENTAL TO MEE'S INTERESTS AS EXCLUSIVE LICENSEE AND POTENTIAL OWNER
OF THE XXXX.
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2.2 NOTWITHSTANDING THE FORGOING, THE PARTIES ACKNOWLEDGE AND AGREE
THAT FOR A PERIOD OF SIX (6) MONTHS AFTER THE CLOSE OF THE PHASE OUT PERIOD, IN
THE EVENT THAT SELLER RECEIVES A BONA FIDE REQUEST EITHER FOR: A) EXISTING USER
MANUAL(S) THAT HAVE NOT AS YET BEEN REPRINTED WITH NEW BRANDING; OR B) REPRINTS
OF THIRD PARTY ARTICLES FROM MAGAZINES ABOUT SELLER'S PRODUCTS, OR USER MANUALS
PRINTED BY A THIRD PARTY PRIOR TO THE CLOSE OF THE PHASE OUT PERIOD, SELLER MAY
DISTRIBUTE SUCH MATERIALS THAT IT MAY HAVE, PROVIDED THAT SELLER PLACES STICKERS
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ON THE COVER OF SAID MATERIAL(S) OBLITERATING THE XXXX AND CLEARLY INDICATING
THAT MEE IS NOT THE SOURCE OF THE MATERIALS OR ACCOMPANYING CONTENT. THE
PARTIES FURTHER ACKNOWLEDGE THAT IN LIMITED CASES MATERIALS THAT ARE THE SUBJECT
OF THIS PARAGRAPH 2.2 MAY REFER TO THE XXXX INCIDENTALLY IN THE TEXT OF THE
MATERIALS AND/OR BEAR COPYRIGHT NOTICES REFERRING TO MATHSOFT, AND THAT IT MAY
NOT BE POSSIBLE TO RE-STICKER OR OBLITERATE ALL OF THESE INSTANCES OTHER THAN
THOSE OCCURRENCES THAT APPEAR ON THE COVER OR ON THE OUTSIDE OF THE MATERIALS.
UNDER NO CIRCUMSTANCES SHALL SELLER PRINT, PUBLISH OR DISTRIBUTE ANY
DOCUMENTATION OF ANY SORT BEARING THE XXXX MORE THAN SIX MONTHS AFTER THE PHASE
OUT PERIOD.
3. TERM.
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3.1 TERM. THE TERM OF THIS AGREEMENT (THE "TERM") SHALL COMMENCE ON
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THE DATE HEREOF AND SHALL TERMINATE UPON THE EFFECTIVE DATE OF THE AMENDMENT TO
SELLER'S CORPORATE CHARTER EFFECTING A CHANGE OF CORPORATE NAME.
3.2 RIGHT TO TERMINATE. MEE MAY TERMINATE THIS AGREEMENT, ON PRIOR
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WRITTEN NOTICE TO SELLER, IN THE EVENT THAT: (I) SELLER IS IN DEFAULT OF THE
TERMS OF THIS AGREEMENT AND SUCH DEFAULT CONTINUES FOR MORE THAN THIRTY (30)
DAYS AFTER WRITTEN NOTICE THEREOF TO SELLER; OR (II) SELLER FILES A PETITION IN
BANKRUPTCY OR IS ADJUDICATED A BANKRUPT OR INSOLVENT, OR MAKES AN ASSIGNMENT FOR
THE BENEFIT OF CREDITORS, OR AN ARRANGEMENT PURSUANT TO ANY BANKRUPTCY LAW, OR
IF SELLER DISCONTINUES OR DISSOLVES ITS BUSINESS OR IF A RECEIVER IS APPOINTED
FOR SELLER OR FOR SELLER'S BUSINESS AND SUCH RECEIVER IS NOT DISCHARGED WITHIN
30 DAYS.
4. RESTRICTIONS ON USE.
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4.1 QUALITY, USE, COMPLIANCE WITH LAWS. SELLER ACKNOWLEDGES THAT MEE
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HAS TRADEMARK INTERESTS IN THE XXXX AND RELATED MARKS. SELLER SHALL USE THE
XXXX ONLY IN A MANNER AND FORM: (I) TO DESIGNATE ITS CORPORATE NAME, OR ON
EXISTING PRODUCT AND COLLATERAL AND ONLY AS DESCRIBED IN SECTION 2(B) OF THIS
AGREEMENT; (II) THAT PROTECTS MEE'S EXCLUSIVE LICENSE INTEREST THEREIN; AND
(III) THAT COMPLIES WILL ALL APPLICABLE FEDERAL, STATE, LOCAL AND FOREIGN LAWS,
RULES AND REGULATIONS, INCLUDING, WITHOUT LIMITATION, ALL APPLICABLE TRADEMARK
LAWS, RULES AND REGULATIONS.
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4.2 QUALITY CONTROL. MEE SHALL HAVE THE RIGHT TO MONITOR AND INSPECT
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THE FACILITIES, GOODS AND OTHER MATERIALS ON WHICH THE XXXX IS APPLIED FOR THE
PURPOSE OF PROTECTING AND MAINTAINING THE ESTABLISHED STANDARDS OF QUALITY AND
GOOD WILL ASSOCIATED WITH THE XXXX. IF MEE AT ANY TIME FINDS THAT SELLER'S USE
OF THE XXXX IS NOT CONSISTENT WITH STANDARDS OF QUALITY ACCEPTABLE TO MEE,
SELLER SHALL UNDERTAKE TO CORRECT SUCH DEFECTS IN ACCORDANCE WITH SUCH
REASONABLE NOTIFICATION WITHIN TEN (10) DAYS OF SUCH NOTICE. MEE MAY, AT ITS
ELECTION, INSTRUCT SELLER TO REMOVE THE XXXX FROM ANY LOCATIONS WHERE SUCH
INCONSISTENT USE APPEARS, AND SELLER SHALL MAKE BEST EFFORTS TO COMPLY WITH SUCH
INSTRUCTION. IN THE EVENT THAT ACTUAL CONFUSION AS TO THE SOURCE OF GOODS OR
SERVICES BEARING THE XXXX ARISES, SELLER AND MEE SHALL COOPERATE WITH ONE
ANOTHER, EACH AT THEIR OWN EXPENSE, TO REDUCE OR ERADICATE SAID CONFUSION BY,
FOR EXAMPLE, PLACING REASONABLE LEGENDS, MARKINGS AND NOTICES ON MATERIALS
BEARING THE XXXX, IDENTIFYING MEE AS AN EXCLUSIVE LICENSEE AND POTENTIAL OWNER
OF THE XXXX.
MEE HEREBY ACKNOWLEDGES THAT, TO THE BEST OF ITS KNOWLEDGE, AS OF THE TIME
OF CLOSING, SELLER'S FACILITIES, GOODS AND OTHER MATERIALS ON WHICH THE XXXX IS
APPLIED MEET OR EXCEED THE STANDARDS OF QUALITY AND GOOD WILL REQUIRED UNDER
THIS PARAGRAPH.
4.3 USE. SELLER SHALL USE THE XXXX ONLY AS ITS CORPORATE NAME AND ONLY
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IN CONJUNCTION WITH "INC." IN SUCH A MANNER THAT "INC." IMMEDIATELY FOLLOWS THE
XXXX, AND, IN THE EXERCISE OF ITS RIGHTS PURSUANT TO SECTION 2(B) ABOVE, ONLY AS
THE XXXX APPEARS ON SUCH EXISTING INVENTORY AND IN ADVERTISEMENTS CONTRACTED FOR
PRIOR TO THE CLOSING.
4.4 OWNERSHIP OF XXXX. MEE EXPRESSLY RESERVES THE SOLE AND EXCLUSIVE
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RIGHT TO ACQUIRE OWNERSHIP OF THE XXXX AND ALL RIGHTS RELATING THERETO UPON THE
EFFECTIVENESS OF A CHANGE OF CORPORATE NAME OF THE SELLER. SELLER HEREBY
ACKNOWLEDGES THAT MEE HAS THE SOLE AND EXCLUSIVE RIGHT TO COMPEL TRANSFER OF
OWNERSHIP OF THE XXXX AND AGREES NOT TO CHALLENGE AT ANY TIME, DIRECTLY OR
INDIRECTLY, THE RIGHTS OF MEE THERETO.
5. ADDITIONAL COVENANTS OF THE PARTIES.
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5.1 REGISTRATION AND MAINTENANCE. DURING THE TERM OF THIS AGREEMENT
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SELLER SHALL HAVE RESPONSIBILITY FOR MAINTAINING ALL REGISTRATIONS OF THE XXXX,
AND TO TRANSACT ALL BUSINESS IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
AND ALL FOREIGN COUNTERPARTS IN CONNECTION WITH THE XXXX. SELLER AGREES TO
COOPERATE WITH MEE IN THE PROSECUTION OF ANY TRADEMARK OR SERVICE XXXX
APPLICATION IN ANY JURISDICTION THAT MEE MAY DESIRE TO FILE WITH RESPECT TO THE
XXXX AND IN THE MAINTENANCE OF ANY REGISTRATIONS OF THE XXXX. IN THE EVENT THAT
SELLER, DESPITE REASONABLE NOTICE, OR REQUEST OF MEE, DOES NOT TAKE AN ACTION
THAT XXX XXXXX REASONABLY NECESSARY TO PROCURE OR MAINTAIN RIGHTS IN THE XXXX,
MEE MAY, WITH NOTICE TO SELLER, TAKE ANY SUCH ACTION, AND SELLER HEREBY GRANTS
TO MEE POWER OF ATTORNEY TO TAKE SUCH ACTION.
5.2 LIKELIHOOD OF CONFUSION. OTHER THAN USE OF THE XXXX BY SELLER AS
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PROVIDED FOR UNDER THE TERMS OF THIS AGREEMENT, SELLER SHALL NOT ADOPT OR USE
ANY WORD, NAME, XXXX, SYMBOL OR OTHER DESIGNATION OR TRADE STYLE WHICH IN MEE'S
REASONABLE OPINION IS LIKELY TO CAUSE CONFUSION WITH THE XXXX.
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5.3 QUALITY CONTROL BY SELLER. SELLER AGREES THAT ALL PRODUCTS AND
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SERVICES IDENTIFIED BY THE XXXX SHALL BE AT LEAST EQUAL IN QUALITY TO PRODUCTS
AND SERVICES PROVIDED BY SELLER IMMEDIATELY PRIOR TO THE TRANSACTION. SHOULD
MEE NOTIFY SELLER THAT THE PRODUCTS OR SERVICES IDENTIFIED BY THE XXXX FAIL TO
COMPLY WITH THE FOREGOING STANDARD, SELLER SHALL UNDERTAKE TO CORRECT SUCH
DEFECTS IN ACCORDANCE WITH SUCH REASONABLE NOTIFICATION WITHIN TEN (10) DAYS OF
SUCH NOTICE.
5.4 ASSIGNMENT OF XXXX. SELLER SHALL, PROMPTLY UPON A CHANGE OF ITS
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CORPORATE NAME, ASSIGN TO MEE ALL RIGHT, TITLE AND INTEREST IN AND TO THE XXXX
AND GOODWILL ASSOCIATED WITH AND SYMBOLIZED BY THE XXXX, AND SHALL EXECUTE SUCH
INSTRUMENTS OF CONVEYANCE AND FORMS SUITABLE FOR RECORDING TO EVIDENCE SUCH
ASSIGNMENT AS MEE MAY REQUEST.
5.5 COOPERATION. EACH PARTY AGREES TO EXECUTE, ACKNOWLEDGE AND DELIVER
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ALL FURTHER INSTRUMENTS AND DOCUMENTS AND TAKE ALL SUCH FURTHER ACTION AS MAY BE
NECESSARY OR APPROPRIATE IN ORDER TO CARRY OUT THE INTENTIONS AND PURPOSES OF
THIS AGREEMENT.
6. INFRINGEMENT BY THIRD PARTIES.
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MEE SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, IN ITS SOLE AND ABSOLUTE
DISCRETION, TO PROSECUTE OR DEFEND, AT ITS OWN EXPENSE, ALL SUITS INVOLVING THE
XXXX AND TO TAKE ANY ACTION THAT IT DEEMS DESIRABLE OR NECESSARY FOR THE
PROTECTION THEREOF. AT MEE'S DISCRETION, IT MAY DO SO IN ITS NAME, IN THE NAME
OF SELLER, OR IN THE NAME OF SELLER AND ITS NAME AND SELLER SHALL CLAIM NO
RIGHTS AGAINST MEE AS A RESULT OF ANY SUCH ACTION. IF, DURING THE TERM OF THIS
AGREEMENT, MEE DECIDES TO TAKE AFFIRMATIVE ACTION AGAINST ANY INFRINGEMENT OR
ACTS OF UNFAIR COMPETITION, SELLER AGREES TO REASONABLY ASSIST MEE AT NO COST TO
MEE. RECOVERY OF COSTS OR DAMAGES RESULTING FROM ANY SUCH ACTION SHALL BE
SOLELY FOR THE ACCOUNT OF MEE.
7. DISCLAIMER; LIMITATION OF LIABILITY. OTHER THAN AS MAY BE EXPLICITLY SET
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FORTH IN THE STOCK PURCHASE AGREEMENT, MEE AND SELLER EACH FOR THEMSELVES AND
EACH ON THEIR OWN BEHALF MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE XXXX, NAME OR RELATED MARKS. MEE AND
SELLER EACH FOR THEMSELVES AND EACH ON THEIR OWN BEHALF HEREBY DISCLAIM ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR
PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER HEREUNDER FOR
ANY DIRECT OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES,
EXCEPT AS MAY BE PROVIDED IN THE STOCK PURCHASE AGREEMENT.
8. EQUITABLE RELIEF. SELLER ACKNOWLEDGES THAT MONEY DAMAGES WOULD NOT
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ADEQUATELY COMPENSATE MEE IN THE EVENT OF A BREACH BY SELLER OF ITS OBLIGATIONS
HEREUNDER, AND THAT EQUITABLE RELIEF WOULD BE ESSENTIAL FOR MEE TO ADEQUATELY
PROTECT ITSELF HEREUNDER. ACCORDINGLY, SELLER AGREES THAT, IN ADDITION TO ANY
OTHER REMEDIES AVAILABLE TO MEE AT LAW OR IN EQUITY, MEE SHALL BE ENTITLED TO
SPECIFIC PERFORMANCE AND/OR INJUNCTIVE RELIEF IN THE EVENT SELLER IS IN BREACH
OF ANY COVENANT OR AGREEMENT CONTAINED HEREIN, PROVIDED THAT NO SUCH INJUNCTION
WOULD PROHIBIT SELLER FROM USING THE XXXX AS ITS CORPORATE NAME, MATHSOFT, INC.,
UNTIL SUCH TIME THAT SELLER IS ABLE TO LEGALLY CHANGE ITS CORPORATE NAME.
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9. MISCELLANEOUS.
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9.1 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
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WITH, AND GOVERNED BY, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES OF SUCH COMMONWEALTH.
9.2 ENTIRE AGREEMENT. THIS AGREEMENT SETS FORTH THE ENTIRE AGREEMENT
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BETWEEN THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND IS
INTENDED TO SUPERSEDE ALL PRIOR NEGOTIATIONS, UNDERSTANDINGS AND AGREEMENTS. NO
PROVISION OF THIS AGREEMENT MAY BE WAIVED OR AMENDED, EXCEPT BY A WRITING SIGNED
BY MEE AND SELLER.
9.3 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
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COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND TOGETHER WHICH SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
9.4 WAIVER. THE FAILURE OF ANY PARTY TO EXERCISE ANY RIGHT OR REMEDY
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PROVIDED FOR HEREIN SHALL NOT BE DEEMED A WAIVER OF ANY RIGHT OR REMEDY
HEREUNDER.
9.5 SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT IS DETERMINED BY A
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COURT OF COMPETENT JURISDICTION TO BE INVALID OR OTHERWISE UNENFORCEABLE, SUCH
DETERMINATION SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY REMAINING
PROVISIONS OF THIS AGREEMENT. IF ANY PROVISION OF THIS AGREEMENT IS INVALID
UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, IT SHALL BE ENFORCED TO THE MAXIMUM
EXTENT POSSIBLE SO AS TO EFFECT THE INTENT OF THE PARTIES, AND THE REMAINDER OF
THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT.
9.6 NOTICES. ALL NOTICES OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED
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TO BE GIVEN BY EITHER PARTY TO THE OTHER PARTY HEREUNDER SHALL BE GIVEN IN THE
MANNER AND TO THE ADDRESSES SPECIFIED IN THE STOCK PURCHASE AGREEMENT.
9.7 ASSIGNMENT. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE
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BENEFIT OF EACH OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, PROVIDED THAT SELLER MAY NOT ASSIGN ANY OF ITS RIGHTS HEREUNDER WITHOUT
THE PRIOR WRITTEN CONSENT OF MEE.
9.8 SECTION HEADINGS. THE SECTION HEADINGS USED HEREIN ARE FOR THE
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CONVENIENCE OF THE PARTIES ONLY, ARE NOT SUBSTANTIVE AND SHALL NOT BE USED TO
INTERPRET OR CONSTRUE ANY OF THE PROVISIONS CONTAINED HEREIN.
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT UNDER SEAL
THE DAY AND YEAR FIRST ABOVE WRITTEN.
MATHSOFT, INC. MATHSOFT ENGINEERING & EDUCATION, INC.
BY /s/ Xxxxxxx X. Xxxxxx BY /s/ Xxxxxx X. X'Xxxxx
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TITLE Chief Executive Officer TITLE Vice President
and President
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DATE January 23, 2001 DATE January 23, 2001
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