All such notices,
requests and other
12
communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5 p.m. on a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed to have
been received on the next succeeding business day in the place of receipt.
SECTION 8.02.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
THE
REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN AND IN ANY
CERTIFICATE OR OTHER WRITING DELIVERED PURSUANT HERETO SHALL NOT SURVIVE THE
ACCEPTANCE DATE, EXCEPT FOR THOSE COVENANTS CONTAINED HEREIN TO THE EXTENT THAT
BY THEIR TERMS APPLY OR ARE TO BE PERFORMED AFTER THE ACCEPTANCE DATE.
SECTION 8.03.
AMENDMENTS AND WAIVERS.
(A)
ANY PROVISION OF THIS AGREEMENT MAY
BE AMENDED OR WAIVED PRIOR TO THE EFFECTIVE TIME IF, BUT ONLY IF, SUCH AMENDMENT
OR WAIVER IS IN WRITING AND IS SIGNED, IN THE CASE OF AN AMENDMENT, BY EACH
PARTY TO THIS AGREEMENT OR, IN THE CASE OF A WAIVER, BY EACH PARTY AGAINST WHOM
THE WAIVER IS TO BE EFFECTIVE; PROVIDED THAT ANY SUCH AMENDMENT OR WAIVER BY THE
COMPANY SHALL REQUIRE THE APPROVAL OF THE SPECIAL COMMITTEE.
(B)
NO FAILURE OR DELAY BY ANY PARTY IN EXERCISING ANY RIGHT, POWER OR
PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER THEREOF NOR SHALL ANY SINGLE OR
PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE
EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
THE RIGHTS AND REMEDIES HEREIN
PROVIDED SHALL BE CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS OR REMEDIES
PROVIDED BY LAW.
SECTION 8.04.
EXPENSES.
ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH
THIS AGREEMENT SHALL BE PAID BY THE PARTY INCURRING SUCH COST OR EXPENSE.
SECTION 8.05.
BINDING EFFECT; BENEFIT; ASSIGNMENT.
(A)
THE PROVISIONS OF THIS
AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE PARTIES
HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
NO PROVISION OF THIS
AGREEMENT IS INTENDED TO CONFER ANY RIGHTS, BENEFITS, REMEDIES, OBLIGATIONS OR
LIABILITIES HEREUNDER UPON ANY PERSON OTHER THAN THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
(B)
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.
SECTION 8.06.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SUCH STATE.
SECTION 8.07.
JURISDICTION.
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 OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE BROUGHT IN THE COURT OF CHANCERY OF THE STATE OF
DELAWARE IN AND FOR NEW CASTLE COUNTY, DELAWARE, AND EACH OF THE PARTIES HEREBY
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURT (AND OF THE
APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION