CORPORATE LAW, THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE DGCL.
WITH RESPECT TO ALL OTHER MATTERS THIS AGREEMENT
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO ANY APPLICABLE CONFLICTS OF LAW.
SECTION 12.7.
ASSIGNMENT.
NEITHER THIS AGREEMENT
NOR ANY OF THE RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER SHALL BE ASSIGNED BY
ANY OF THE PARTIES HERETO (WHETHER BY OPERATION OF LAW OR OTHERWISE) WITHOUT THE
PRIOR WRITTEN CONSENT OF THE OTHER PARTIES, EXCEPT THAT PARENT OR MERGER SUB MAY
ASSIGN ITS RIGHTS HEREUNDER (A) TO ONE OR MORE OF ITS LENDERS OR (B) FOLLOWING
THE EFFECTIVE TIME, TO A PURCHASER OF THE SURVIVING CORPORATION OR THE BUSINESS
OF THE SURVIVING CORPORATION.
SUBJECT TO THE PRECEDING SENTENCE, THIS AGREEMENT
WILL BE BINDING UPON, INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE PARTIES
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 12.8.
AMENDMENT.
THIS AGREEMENT MAY BE
AMENDED BY THE PARTIES HERETO, AT ANY TIME BEFORE OR AFTER APPROVAL OF MATTERS
PRESENTED IN CONNECTION WITH THE MERGER BY THE STOCKHOLDERS OF THE COMPANY, BUT
AFTER ANY SUCH STOCKHOLDER APPROVAL, NO AMENDMENT SHALL BE MADE WHICH BY LAW
REQUIRES THE FURTHER APPROVAL OF STOCKHOLDERS WITHOUT OBTAINING SUCH FURTHER
APPROVAL.
THIS AGREEMENT MAY NOT BE AMENDED EXCEPT BY AN INSTRUMENT IN WRITING
SIGNED ON BEHALF OF EACH OF THE PARTIES HERETO.
SECTION 12.9.
EXTENSION; WAIVER.
AT ANY TIME PRIOR
TO THE EFFECTIVE TIME, THE PARTIES HERETO MAY, TO THE EXTENT LEGALLY ALLOWED,
(A) EXTEND THE TIME FOR THE PERFORMANCE OF ANY OF THE OBLIGATIONS OR THE OTHER
ACTS OF THE OTHER PARTIES HERETO, (B) WAIVE ANY INACCURACIES IN THE
REPRESENTATIONS OR WARRANTIES CONTAINED HEREIN OR IN ANY DOCUMENT DELIVERED
PURSUANT HERETO AND (C) WAIVE COMPLIANCE WITH ANY OF THE AGREEMENTS OR
CONDITIONS CONTAINED HEREIN. ANY AGREEMENT ON THE PART OF A PARTY HERETO TO ANY
SUCH EXTENSION OR WAIVER SHALL BE VALID ONLY IF SET FORTH IN A WRITTEN
INSTRUMENT SIGNED ON BEHALF OF SUCH PARTY.
ANY SUCH WAIVER BY A PARTY OF A
CONDITION TO CLOSING OF THIS AGREEMENT SHALL ALSO OPERATE AS A WAIVER AND
RELEASE OF ANY CORRESPONDING
57
COVENANT OR AGREEMENT RELATING TO THE SAME SUBJECT MATTER SET FORTH IN ARTICLES
VI THROUGH VIII OF THIS AGREEMENT.
NO WAIVER OF ANY PROVISION OF THIS AGREEMENT
(A) SHALL, EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, BE DEEMED
TO OR SHALL CONSTITUTE A WAIVER OF ANY OTHER PROVISION HEREOF (WHETHER OR NOT
SIMILAR) OR (B) SHALL CONSTITUTE A CONTINUING WAIVER UNLESS OTHERWISE EXPRESSLY
PROVIDED THEREIN.
NO DELAY OR OMISSION ON THE PART OF ANY PARTY IN EXERCISING
ANY RIGHT, POWER OR REMEDY UNDER THIS AGREEMENT WILL OPERATE AS A WAIVER
THEREOF.
SECTION 12.10.
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT IS HELD TO BE ILLEGAL, INVALID OR UNENFORCEABLE UNDER ANY PRESENT OR
FUTURE LAW OR REGULATION, AND IF THE RIGHTS OR OBLIGATIONS OF ANY PARTY HERETO
UNDER THIS AGREEMENT WILL NOT BE MATERIALLY AND