THE TERMS OF THIS AGREEMENT) OR MAKE ANY PUBLIC ANNOUNCEMENT RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT PRIOR TO THE CLOSING WITHOUT THE PRIOR WRITTEN
APPROVAL OF BUYER AND MEMBER AGENT, WHICH APPROVALS SHALL NOT BE UNREASONABLY
WITHHELD; ANY PARTY MAY DISCLOSE THE EXISTENCE OF THIS AGREEMENT AND THE TERMS
OF THE TRANSACTION CONTEMPLATED HEREBY TO SUCH OF ITS OFFICERS, DIRECTORS,
MANAGER OR AGENTS WHO SUCH PARTY REASONABLY BELIEVES HAVE A NEED TO KNOW AND WHO
ARE BOUND BY CONFIDENTIALITY AGREEMENTS; PROVIDED, FURTHER, THAT BUYER MAY ISSUE
ANY PRESS RELEASE OR MAKE ANY PUBLIC DISCLOSURE THAT ITS GENERAL COUNSEL OR
OUTSIDE LEGAL COUNSEL REASONABLY BELIEVES IS REQUIRED BY APPLICABLE LAW OR ANY
LISTING OR TRADING AGREEMENT CONCERNING ITS PUBLICLY TRADED SECURITIES.
11.3
NO THIRD-PARTY BENEFICIARIES.
THIS AGREEMENT SHALL NOT CONFER ANY
RIGHTS OR REMEDIES UPON ANY PERSON OTHER THAN THE PARTIES AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS.
41
11.4
ENTIRE AGREEMENT.
THIS AGREEMENT (INCLUDING THE DOCUMENTS REFERRED
TO HEREIN) CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES AND SUPERSEDES ANY
PRIOR UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS BY OR AMONG THE PARTIES,
WRITTEN OR ORAL, TO THE EXTENT THEY RELATE IN ANY WAY TO THE SUBJECT MATTER
HEREOF.
11.5
SUCCESSION AND ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE PARTIES NAMED HEREIN AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS.
NO PARTY MAY ASSIGN EITHER THIS AGREEMENT OR
ANY OF HIS, HER, OR ITS RIGHTS, INTERESTS, OR OBLIGATIONS HEREUNDER WITHOUT THE
PRIOR WRITTEN APPROVAL OF BUYER AND MEMBER AGENT; PROVIDED, HOWEVER, THAT BUYER
MAY (I) ASSIGN ANY OR ALL OF ITS RIGHTS AND INTERESTS HEREUNDER TO ONE OR MORE
OF ITS AFFILIATES AND (II) DESIGNATE ONE OR MORE OF ITS AFFILIATES TO PERFORM
ITS OBLIGATIONS HEREUNDER (IN ANY OR ALL OF WHICH CASES BUYER NONETHELESS SHALL
REMAIN RESPONSIBLE FOR THE PERFORMANCE OF ALL OF ITS OBLIGATIONS HEREUNDER).
11.6
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS (INCLUDING BY MEANS OF FACSIMILE), EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
11.7
HEADINGS.
THE SECTION HEADINGS CONTAINED IN THIS AGREEMENT ARE
INSERTED FOR CONVENIENCE ONLY AND SHALL NOT AFFECT IN ANY WAY THE MEANING OR
INTERPRETATION OF THIS AGREEMENT.
11.8
NOTICES.
ALL NOTICES, REQUESTS, DEMANDS, CLAIMS, AND OTHER
COMMUNICATIONS HEREUNDER SHALL BE IN WRITING.
ANY NOTICE, REQUEST, DEMAND,
CLAIM, OR OTHER COMMUNICATION HEREUNDER SHALL BE DEEMED DULY GIVEN (I) WHEN
DELIVERED PERSONALLY TO THE RECIPIENT, (II) 1 BUSINESS DAY AFTER BEING SENT TO
THE RECIPIENT BY REPUTABLE OVERNIGHT COURIER SERVICE (CHARGES PREPAID), (III) 1
BUSINESS DAY AFTER BEING SENT TO THE RECIPIENT BY FACSIMILE TRANSMISSION OR
ELECTRONIC MAIL, OR (IV) 4 BUSINESS DAYS AFTER BEING MAILED TO THE RECIPIENT BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED AND POSTAGE PREPAID, AND
ADDRESSED TO THE INTENDED RECIPIENT AS SET FORTH BELOW:
If to
Sellers:
Jibbitz, LLC
3052 Sterling Circle
Boulder Colorado 80301
Attn:
Richard Schmelzer
Fax:
(303) 484-6380
Copy
to:
Cooley Godward LLP