BY THE END DATE; OR
(E)
BY THE SELLERS IF THEY ARE NOT IN MATERIAL BREACH OF THEIR
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS UNDER THIS AGREEMENT WHICH
ARE CAPABLE OF BEING CURED, AND THERE HAS BEEN A BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT CONTAINED IN THIS AGREEMENT ON THE PART OF
ACQUIRER, AND THE ACQUIRER IS NOT USING ITS COMMERCIALLY REASONABLE EFFORTS TO
CURE SUCH BREACH, OR HAS NOT CURED SUCH BREACH WITHIN THIRTY (30) DAYS AFTER
NOTICE OF SUCH BREACH TO THE ACQUIRER, THAT WOULD CAUSE ANY OF THE CONDITIONS
SET FORTH IN SECTION 7.2 NOT TO BE SATISFIED, AND SUCH CONDITION IS INCAPABLE OF
BEING SATISFIED BY THE END DATE.
SECTION 8.2
NOTICE; EFFECT OF TERMINATION.
(A)
ANY PARTY DESIRING TO TERMINATE THIS AGREEMENT PURSUANT TO
SECTION 8.1 SHALL GIVE WRITTEN NOTICE OF SUCH TERMINATION TO THE OTHER PARTY OR
PARTIES, AS THE CASE MAY BE, TO THIS AGREEMENT.
THE CONFIDENTIALITY AGREEMENT
SHALL NOT BE AFFECTED BY THE TERMINATION OF THIS AGREEMENT AND SHALL CONTINUE IN
FULL FORCE AND EFFECT IN ACCORDANCE WITH ITS TERMS.
(B)
OTHER THAN AS SET FORTH IN THIS SECTION 8.2(B), IN THE EVENT OF A
VALID TERMINATION OF THIS AGREEMENT AS PROVIDED IN SECTION 8.1, THIS AGREEMENT
SHALL FORTHWITH BECOME VOID AND THERE SHALL BE NO LIABILITY OR OBLIGATION ON THE
PART OF ACQUIRER OR THE SELLERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS OR
SHAREHOLDERS OR AFFILIATES, PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT
SHALL RELIEVE EITHER THE SELLERS OR THE ACQUIRER FROM LIABILITY FOR WILLFUL
BREACH OR FRAUD.
44
SECTION 8.3
AMENDMENT.
NO PROVISION OF THIS AGREEMENT MAY BE
AMENDED, SUPPLEMENTED OR MODIFIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY ALL
PARTIES TO THIS AGREEMENT.
NO CONSENT FROM ANY INDEMNIFIED PARTY UNDER
SECTION 6.2 (OTHER THAN THE PARTIES TO THIS AGREEMENT) SHALL BE REQUIRED IN
ORDER TO AMEND THIS AGREEMENT.
SECTION 8.4
EXTENSION; WAIVER.
AT ANY TIME PRIOR TO THE CLOSING
DATE ACQUIRER AND THE SELLERS MAY, TO THE EXTENT LEGALLY ALLOWED, (A) EXTEND THE
TIME FOR THE PERFORMANCE OF ANY OF THE OBLIGATIONS OF THE OTHER PARTIES HERETO,
(B) WAIVE ANY INACCURACIES IN THE REPRESENTATIONS AND WARRANTIES MADE TO SUCH
PARTY CONTAINED HEREIN OR IN ANY DOCUMENT DELIVERED PURSUANT HERETO, AND
(C) WAIVE COMPLIANCE WITH ANY OF THE AGREEMENTS, COVENANTS OR CONDITIONS FOR THE
BENEFIT OF SUCH PARTY 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 AN
INSTRUMENT IN WRITING SIGNED ON BEHALF OF SUCH PARTY.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
SECTION 9.1
NOTICES.
ALL NOTICES, REQUESTS AND OTHER COMMUNICATIONS
HEREUNDER MUST BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN DULY GIVEN ONLY IF
DELIVERED PERSONALLY AGAINST WRITTEN RECEIPT OR BY FACSIMILE TRANSMISSION
AGAINST FACSIMILE CONFIRMATION OR MAILED BY INTERNATIONALLY RECOGNIZED OVERNIGHT
COURIER PREPAID, TO THE PARTIES AT THE FOLLOWING ADDRESSES OR FACSIMILE NUMBERS:
If to Acquirer to:
Synnex Corporation
44201 Nobel Drive
Fremont, CA 94538
Telephone No.: (510) 668-3668
Facsimile