Common use of Entire Agreement; Nonassignability; Parties in Interest Clause in Contracts

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto and the Confidentiality Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. In the event of a conflict between the terms of this Agreement and the terms of the Litigation Management Agreement, the terms of the Litigation Management Agreement shall govern and control. Except as specifically stated in a particular section of this Agreement, and except for the Company Holders, who are intended third party beneficiaries hereunder, including with respect to the receipt of the Merger Consideration pursuant to ARTICLE I, no provision of this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties hereto, except that (x) Parent 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 (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); (y) in the event of the death, incapacity or unwillingness to serve of one of the Stockholder Representatives, the other Stockholder Representative shall be entitled to appoint a replacement Stockholder Representative and, in the event of the death, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parent, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be void. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise set forth in this Agreement.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto hereto, including the exhibits hereto, the Company Disclosure Schedule and the Confidentiality Agreement other schedules hereto: (a) together constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. In , except for the event of a conflict between the terms of this Agreement and the terms of the Litigation Management Confidentiality Agreement, the both of which shall continue in full force and effect in accordance with their terms of the Litigation Management Agreement and shall govern and control. Except as specifically stated in a particular section survive any termination of this Agreement, and except for the Company Holders, who ; (b) are not intended third party beneficiaries to confer upon any other person any rights or remedies hereunder, including with respect to except as provided in the receipt of the Merger Consideration pursuant to ARTICLE I, no provision final sentence of this Agreement Section 10.5; and (c) shall create not be assigned by Parent or be deemed to create any third party beneficiary rights in any person Merger Sub, on the one hand, or entity not a party to this Agreement. The provisions by the Company, on the other hand (by operation of this Agreement shall be binding upon and inure to law or otherwise), without the benefit written consent of each of the parties hereto hereto; provided, however, that Parent and their respective successors and assigns; provided that no party Merger Sub may assign, delegate or otherwise transfer any of its rights or obligations under assign this Agreement without the consent of the other parties hereto, except that (x) Parent may to their Affiliates so long as (i) assign any or Parent guarantees in writing the performance of all of its rights and interests hereunder to one or more of its Affiliates, obligations so assigned and (ii) designate one such assignment would not reasonably be expected to (w) impose any material delay in the obtaining of, or more significantly increase the risk of its Affiliates not obtaining any required approvals or consents to perform its obligations hereunder (provided that in the Merger from any Governmental Authority or all cases under this clause the expiration or termination of any applicable waiting period, (x) Parent nonetheless shall remain responsible for significantly increase the performance risk of all any Governmental Authority entering an order prohibiting the consummation of its obligations hereunder); the Merger, (y) in significantly increase the event risk of the death, incapacity not being able to remove any such order on appeal or unwillingness to serve of one of the Stockholder Representatives, the other Stockholder Representative shall be entitled to appoint a replacement Stockholder Representative and, in the event of the death, incapacity otherwise or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each materially delay the consummation of Parent, the Merger. If the requirements of the proviso in the previous sentence are met and Parent or Merger Sub wishes to designate another entity to be a constituent corporation in lieu thereof, then all references herein to Parent or Merger Sub, as applicable, shall be deemed references to such other entity, except that all representations and warranties made herein with respect to Parent or Merger Sub, as applicable, as of the date hereof shall be deemed representations and warranties made with respect to such other entity as of the date of such assignment. Notwithstanding anything to the contrary contained in this Agreement (but without limiting any of the rights of the Stockholders’ Agent hereunder), if the Merger is consummated, (i) the Former Stockholders and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lenderpersons who held, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory immediately prior to the Stockholder Representatives. Any attempted assignment in violation Effective Time, options to purchase Company Capital Stock shall be third party beneficiaries of this Section 9.5(a) will be void. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise provisions set forth in this AgreementSection 2, and (iii) the Company’s former officers and directors shall be third party beneficiaries of the provisions set forth in Section 6.6.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto hereto, including the exhibits hereto, the Company Disclosure Schedule and the Confidentiality Agreement other schedules hereto: (i) together constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. In , except for the event of a conflict between the Confidentiality Agreements, which shall continue in full force and effect in accordance with their terms of this Agreement and the terms of the Litigation Management Agreement, the terms of the Litigation Management Agreement shall govern and control. Except as specifically stated in a particular section survive any termination of this Agreement, and except for the Company Holders, who ; (ii) are not intended third party beneficiaries to confer upon any other person any rights or remedies hereunder, including with respect to except as provided in clause (b) of this Section 10.4; and (iii) shall not be assigned by Parent or Merger Sub, on the receipt one hand, or by the Company, on the other hand (by operation of law or otherwise), without the written consent of each of the Merger Consideration pursuant to ARTICLE I, no provision of this Agreement shall create or be deemed to create parties hereto (and any third party beneficiary rights purported assignment in any person or entity not a party to this Agreement. The provisions violation of this Agreement shall be binding upon and inure void); provided, however, that Parent may substitute, by written notice to the benefit Company, another direct or indirect Subsidiary of the parties hereto and their respective successors and assigns; provided that no party may assignParent, delegate or otherwise transfer any an Affiliate of its rights or obligations under this Agreement without the consent Parent, in lieu of the Merger Sub, in which event all references herein to Merger Sub shall be deemed references to such other parties heretoperson, except that (x) Parent may (i) assign any or all of its rights representations and interests hereunder warranties made herein with respect to one or more of its Affiliates, and (ii) designate one or more of its Affiliates to perform its obligations hereunder (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); (y) in the event Merger Sub as of the death, incapacity or unwillingness date of this Agreement shall be deemed representations and warranties made with respect to serve of one such other person as of the Stockholder Representatives, the other Stockholder Representative shall be entitled to appoint a replacement Stockholder Representative and, in the event date of the death, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parent, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be voidsubstitution. (b) At ClosingThis Agreement is not intended to, the Surviving Corporation shall execute a joinder to this Agreementand does not, which will be in form and substance reasonably acceptable to confer upon any person other than the parties (the “Joinder Agreement”), who are signatories hereto any rights or remedies hereunder [*] The rights granted pursuant to which clause (i) of this Section 10.4(b) shall not be exercisable by any Company Securityholder and shall only be enforceable on behalf of Company Securityholders by the Surviving Corporation will assumeStockholders’ Agent in its sole and absolute discretion, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise set forth in this Agreementagent for such holders.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto to this Agreement, including the exhibits to this Agreement, the Target Disclosure Schedule and the Confidentiality Agreement other schedules to this Agreement: (a) together constitute the entire agreement among the parties Parties with respect to the subject matter hereof of this Agreement and supersede all prior agreements and understandingsunderstandings (including the Original Agreement), both written and oral, among the parties Parties with respect to the subject matter hereof. In the event of a conflict between the terms of this Agreement and the terms of the Litigation Management Agreement, the terms of the Litigation Management Agreement shall govern and control. Except as specifically stated in a particular section of this Agreement, and except for the Company HoldersConfidentiality Agreement, who which will continue in full force and effect in accordance with its terms and will survive any termination of this Agreement; (b) are not intended third party beneficiaries to confer upon any other person any rights or remedies hereunder, including with respect except as provided in the last sentence of Section 8.3 (which is intended to be enforceable by the persons specified therein to the receipt extent applicable), the last sentence of Section 10.8 (which is intended to be enforceable by the Lenders and their Representatives) and the final sentence of this Section 10.5; and (c) will not be assigned by Acquiror or Merger Sub, on the one hand, or by Target, on the other hand (by operation of law or otherwise), without the written consent of each of the Merger Consideration pursuant to ARTICLE I, no provision of this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party Parties to this Agreement. The provisions of this Agreement , except that Acquiror shall be binding upon entitled to freely assign its rights and inure obligations hereunder to one of its affiliates (provided that such affiliate is of similar creditworthiness and such assignment does not affect the benefit of Acquiror’s (or its assignee’s) ability to obtain the parties hereto and their respective successors and assigns; Financing on a less timely basis. Acquiror may collaterally assign its rights hereunder to any financial institution providing financing in connection with the transactions contemplated by this Agreement, provided that no party may assign, delegate such assignment or otherwise transfer delegation will relieve Acquiror from any of its rights or obligations under this Agreement without the consent of the other parties hereto, except that (x) Parent 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 (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); . Notwithstanding anything to the contrary contained in this Agreement (y) in the event but without limiting any of the death, incapacity or unwillingness to serve of one rights of the Stockholder RepresentativesStakeholders’ Agent hereunder), if the other Stockholder Representative shall Merger is consummated, (i) the Former Stakeholders and the persons who held, immediately prior to the Effective Time, options to purchase Target Capital Stock will be entitled to appoint a replacement Stockholder Representative and, in the event third party beneficiaries of the death, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parent, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be void. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise provisions set forth in this AgreementSection 2, (ii) the Former Stakeholders will be third party beneficiaries of the provisions set forth in Section 9.1(b), and (iii) the Indemnified Parties will be third party beneficiaries of the provisions set forth in Section 6.10.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto hereto, including the exhibits hereto, the Disclosure Schedule and the Confidentiality Agreement other schedules hereto: (i) together constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. In , except for the event of a conflict between the terms of this Agreement and the terms of the Litigation Management Confidentiality Agreement, the which shall continue in full force and effect in accordance with their terms of the Litigation Management Agreement and shall govern and control. Except as specifically stated in a particular section survive any termination of this Agreement; and (ii) shall not be assigned by Parent or Merger Sub, and except for on the Company Holdersone hand, who are intended third party beneficiaries hereunderor by the Company, including with respect to on the receipt other hand (by operation of Law or otherwise), without the written consent of each of the Merger Consideration pursuant to ARTICLE I, no provision of this Agreement shall create or be deemed to create parties hereto (and any third party beneficiary rights purported assignment in any person or entity not a party to this Agreement. The provisions violation of this Agreement shall be binding void). (b) This Agreement is not intended to, and does not, confer upon any Person other than the parties who are signatories hereto any rights, benefits or remedies of any nature whatsoever hereunder or by reason of this Agreement except (i) to the Company Securityholders as set forth in Article I, (ii) as set forth in Section 5.7; provided, that the parties hereto further agree that the rights of third party beneficiaries under Section 5.7 shall not arise unless and until the Effective Time occurs and (iii) the Financing Sources shall be express third party beneficiaries of Section 5.14, and such Section shall inure to the benefit of the parties hereto Financing Sources and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties hereto, except that (x) Parent 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 (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); (y) in the event of the death, incapacity or unwillingness to serve of one of the Stockholder Representatives, the other Stockholder Representative Financing Sources shall be entitled to appoint a replacement Stockholder rely on and enforce the provisions of such Section. It is expressly agreed that the Securityholder Representative and, in Committee shall have the event right to enforce the rights of the deathCompany Securityholders, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parent, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lenderSurviving Corporation, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be void. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to under this Agreement and its post-Closing obligations as otherwise set forth in this Agreementon behalf of the Company Securityholders.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto or in connection herewith, including the exhibits and schedules hereto, including the Confidentiality Agreement Seller Disclosure Schedule: (a) together constitute the entire agreement among the parties Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties Parties with respect to the subject matter hereof. In hereof except for the event of a conflict between the terms Confidentiality Agreement, which except as provided in Section 6.2 shall continue in full force and effect, and shall survive any termination of this Agreement or the Closings, in accordance with its terms; (b) are not intended to confer upon any other Person any rights or remedies hereunder and shall not be assigned by operation of law or otherwise without the terms written consent of the Litigation Management Agreementother Party; and (c) shall not be assigned whether by asset transfer, merger, operation of law, change of control or otherwise without the terms written consent of the Litigation Management Agreement shall govern and controlother Party. Except as specifically stated in a particular section of this AgreementNotwithstanding the foregoing, and except for the Company Holders, who are intended third party beneficiaries hereunder, including with respect to the receipt of the Merger Consideration pursuant to ARTICLE I, no provision of this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party Purchaser Group member may assign, delegate or otherwise transfer freely assign any of its rights or obligations under this Agreement without to an Affiliate (which Affiliate shall have sufficient net assets to satisfy the consent assignee’s obligations hereunder or the assignor shall nonetheless be subject to its obligations hereunder) or as part of a change of control of Qualcomm Technologies or a sale of the other parties hereto, except Qualcomm CDMA Technologies business; provided that (x) Parent may (i) assign if any or all such assignment occurs prior to the payment of its rights the Option Price at the Option Closing, then such assignment shall not affect the obligations of Purchaser Parent under Section 10.9(b), and interests hereunder to one or more of its Affiliatessuch obligations shall continue until such payments are made, and (ii) designate one or more of its Affiliates to perform its obligations hereunder (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); (y) in the event of the deathany such assignment, incapacity this Agreement shall remain with (x) Qualcomm Technologies, (y) an entity directly or unwillingness to serve of one of the Stockholder Representatives, the other Stockholder Representative shall be entitled to appoint a replacement Stockholder Representative and, in the event of the death, incapacity indirectly wholly owned by Qualcomm Technologies or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parentif Qualcomm Technologies no longer owns the Qualcomm CDMA Technologies business, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to successor entity thereof that owns such business (or any lender entity directly or lenders (and any agent for indirectly wholly owned by such successor entity); provided, further, that any such lender(s)) providing financing permitted assignee shall agree to such Person or to any assignee or assignees of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representativesbe bound hereby. Any attempted or purported assignment or transfer in violation derogation of this Section 9.5(a) will the foregoing provisions shall be void. (b) At Closingnull, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form void and substance reasonably acceptable of no effect. Subject to the parties (the “Joinder Agreement”)foregoing, pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement shall be binding upon and its post-Closing obligations as otherwise set forth in this Agreementshall inure to the benefit of the Parties and their respective successors and permitted assigns.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto hereto, including the exhibits hereto, the Company Disclosure Schedule and the Confidentiality Agreement other schedules hereto: (a) together constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. In , except for the event of a conflict between the terms of this Agreement and the terms of the Litigation Management Confidentiality Agreement, the which shall continue in full force and effect in accordance with its terms of the Litigation Management Agreement and shall govern and control. Except as specifically stated in a particular section survive any termination of this Agreement, and except for the Company Holders, who ; (b) are not intended third party beneficiaries to confer upon any other Person any rights or remedies hereunder, including with respect to except as provided in Section 9 or in the receipt of the Merger Consideration pursuant to ARTICLE I, no provision final sentence of this Agreement Section 10.4; and (c) shall create not be assigned by Purchaser or be deemed to create any third party beneficiary rights in any person Merger Sub, on the one hand, or entity not a party to this Agreement. The provisions by Company or the Significant Shareholder, on the other hand (by operation of this Agreement shall be binding upon and inure to law or otherwise), without the benefit written consent of each of the parties hereto and hereto; provided, however, that such consent shall not be necessary for (1) an assignment by Purchaser or Merger Sub of their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties hereto, except that (x) Parent may (i) assign any or all of its rights and interests obligations hereunder to one or more an Affiliate of its Affiliates, and (ii) designate one or more of its Affiliates to perform its obligations hereunder (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all Purchaser so long as such assignment does not relieve Purchaser of its obligations hereunder); , or (y2) in the event any collateral assignment by Purchaser or Merger Sub of the deaththeir rights and obligations hereunder to any lender under credit and collateral agreements or any other source of debt financing under note purchase agreements, incapacity indentures or unwillingness to serve of one of the Stockholder Representatives, the other Stockholder Representative shall be entitled to appoint a replacement Stockholder Representative and, in the event of the death, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representativessimilar agreements, in each case as such agreements may be amended, modified or replaced from time to time. Notwithstanding anything to the contrary contained in this Agreement (but without such consent and with the consent limiting any of the appointee(srights of the Holders’ Agent hereunder), upon which appointment if the replacement Stockholder Representative(sMerger is consummated, (i) the Company Holders shall assume all rights and obligations be third party beneficiaries of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parent, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be void. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise provisions set forth in this AgreementSection 2, (ii) the Company’s former officers and directors shall be third party beneficiaries of the provisions set forth in Section 6.6, and (iii) the Purchaser Indemnified Persons shall be third party beneficiaries of the provisions set forth in Section 9.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto and hereto, including the Confidentiality Agreement Agreements, all the Exhibits attached hereto, the Schedules, including the Company Disclosure Letter, (a) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof. In , except for the event of a conflict between the terms of this Agreement Confidentiality Agreements, which shall continue in full force and the terms of the Litigation Management Agreementeffect, the terms of the Litigation Management Agreement and shall govern and control. Except as specifically stated in a particular section survive any termination of this Agreement, in accordance with their terms; (b) are not intended to confer, and shall not be construed as conferring, upon any Person other than the parties hereto any rights or remedies hereunder (except for that (i) Article VIII is intended to benefit Indemnified Persons, (ii) Section 5.9 is intended to benefit Company Indemnified Parties, and (iii) the Company Holdersshall have the right, who are intended third party beneficiaries hereunderon behalf of the Company Shareholders, to pursue damages (including with respect to claims for damages based on loss of the receipt economic benefits of the Merger Consideration pursuant to ARTICLE I, no provision of and the transactions contemplated by this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties hereto, except that (x) Parent 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 (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); (yCompany Shareholders) in the event of the death, incapacity Acquiror’s or unwillingness the Sub’s breach of this Agreement (whether or not this Agreement has been terminated pursuant to serve of one of the Stockholder Representatives, the other Stockholder Representative shall be entitled to appoint a replacement Stockholder Representative and, in the event of the death, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(sSection 7.1), upon which appointment right is hereby expressly acknowledged and agreed by the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder Acquiror and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminateSub; and (zc) each shall not be assigned by operation of Parent, Merger Sub and law or otherwise except as otherwise specifically provided herein. The third party beneficiary rights referenced in clause (b)(iii) of the preceding sentence may be exercised only by the Company may assign (on behalf of the Company Shareholders as their agent) through actions expressly approved by the Company Board, and no Company Shareholder, whether purporting to act in its rights hereunder for collateral security purposes capacity as a Company Shareholder or purporting to assert any lender right (derivatively or lenders (and otherwise) on behalf of the Company, shall have any agent for any such lender(s)) providing financing right or ability to such Person exercise or to any assignee or assignees cause the exercise of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be voidright. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise set forth in this Agreement.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto to this Agreement, including the exhibits to this Agreement, the Target Disclosure Schedule and the Confidentiality Agreement other schedules to this Agreement: (a) together constitute the entire agreement among the parties Parties with respect to the subject matter hereof of this Agreement and supersede all prior agreements and understandings, both written and oral, among the parties Parties with respect to the subject matter hereof. In the event of a conflict between the terms of this Agreement and the terms of the Litigation Management Agreement, the terms of the Litigation Management Agreement shall govern and control. Except as specifically stated in a particular section of this Agreement, and except for the Company HoldersConfidentiality Agreement, who which will continue in full force and effect in accordance with its terms and will survive any termination of this Agreement; (b) are not intended third party beneficiaries to confer upon any other person any rights or remedies hereunder, including with respect except as provided in the last sentence of Section 8.3 (which is intended to be enforceable by the persons specified therein to the receipt extent applicable), the last sentence of Section 10.8 (which is intended to be enforceable by the Lenders and their Representatives) and the final sentence of this Section 10.5; and (c) will not be assigned by Acquiror or Merger Sub, on the one hand, or by Target, on the other hand (by operation of law or otherwise), without the written consent of each of the Merger Consideration pursuant to ARTICLE I, no provision of this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party Parties to this Agreement. The provisions of this Agreement , except that Acquiror shall be binding upon entitled to freely assign its rights and inure obligations hereunder to one of its affiliates (provided that such affiliate is of similar creditworthiness and such assignment does not affect the benefit of Acquiror’s (or its assignee’s) ability to obtain the parties hereto and their respective successors and assigns; Financing on a less timely basis. Acquiror may collaterally assign its rights hereunder to any financial institution providing financing in connection with the transactions contemplated by this Agreement, provided that no party may assign, delegate such assignment or otherwise transfer delegation will relieve Acquiror from any of its rights or obligations under this Agreement without the consent of the other parties hereto, except that (x) Parent 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 (provided that in any or all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); . Notwithstanding anything to the contrary contained in this Agreement (y) in the event but without limiting any of the death, incapacity or unwillingness to serve of one rights of the Stockholder RepresentativesStakeholders’ Agent hereunder), if the other Stockholder Representative shall Merger is consummated, (i) the Former Stakeholders and the persons who held, immediately prior to the Effective Time, options to purchase Target Capital Stock will be entitled to appoint a replacement Stockholder Representative and, in the event third party beneficiaries of the death, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parent, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be void. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise provisions set forth in this AgreementSection 2, (ii) the Former Stakeholders will be third party beneficiaries of the provisions set forth in Section 9.1(b), and (iii) the Indemnified Parties will be third party beneficiaries of the provisions set forth in Section 6.10.

Entire Agreement; Nonassignability; Parties in Interest. (a) This Agreement, the Escrow Agreement, the Litigation Management Agreement, Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto hereto, including the exhibits and schedules hereto, including the Confidentiality Agreement Target Disclosure Schedule: (a) together constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. In hereof except for the event of a conflict between the terms Confidentiality Agreement, which shall continue in full force and effect, and shall survive any termination of this Agreement or the Closing, in accordance with its terms; and (b) are not intended to confer upon any other Person any rights or remedies hereunder and shall not be assigned by operation of law or otherwise without the terms written consent of the Litigation Management Agreement, other party. Notwithstanding the terms of the Litigation Management Agreement shall govern and control. Except as specifically stated in a particular section foregoing or any other provision of this Agreement, and except (i) Section 6.11 is intended for the Company benefit of, and shall be enforceable by, the Target Indemnified Parties, (ii) Section 9 is intended for the benefit of, and shall be enforceable by, the Acquiror Indemnified Persons, and (iii) after the Effective Time, the rights of the Effective Time Holders to receive the Closing Merger Consideration or other payments specified in Section 2 shall be enforceable by such Effective Time Holders, who are intended third party beneficiaries hereunder. This Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto, including with respect to the receipt exhibits and schedules hereto, including the Target Disclosure Schedule, shall not be assigned by operation of the Merger Consideration pursuant to ARTICLE I, no provision of this Agreement shall create Law or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties heretootherwise, except that (x) Parent may (i) assign any or all of its rights and interests delegate its obligations hereunder to one or more of its Affiliates, and (ii) designate one or more of its Affiliates to perform its obligations hereunder (provided that in any or affiliates as long as Parent remains ultimately liable for all cases under this clause (x) Parent nonetheless shall remain responsible for the performance of all of its obligations hereunder); (y) in the event of the death, incapacity or unwillingness to serve of one of the Stockholder Representatives, the other Stockholder Representative shall be entitled to appoint a replacement Stockholder Representative and, in the event of the death, incapacity or unwillingness to serve of both Stockholder Representatives, Company Holders whose Proportionate Shares total more than 50% shall be entitled to appoint one or more replacement Stockholder Representatives, in each case without such consent and with the consent of the appointee(s), upon which appointment the replacement Stockholder Representative(s) shall assume all rights and obligations of the retiring Stockholder Representative(s) hereunder and the retiring Stockholder Representative(s)’ obligations hereunder shall cease and terminate; and (z) each of Parent, Merger Sub and the Company may assign its rights hereunder for collateral security purposes to any lender or lenders (and any agent for any such lender(s)) providing financing to such Person or to any assignee or assignees of any such lender, lenders or agent, in each case pursuant to customary written documentation reasonably satisfactory to the Stockholder Representatives. Any attempted assignment in violation of this Section 9.5(a) will be void. (b) At Closing, the Surviving Corporation shall execute a joinder to this Agreement, which will be in form and substance reasonably acceptable to the parties (the “Joinder Agreement”), pursuant to which the Surviving Corporation will assume, and will be obligated with Parent and each other on a joint and several basis, each of Parent’s obligations pursuant to this Agreement and its post-Closing obligations as otherwise set forth in this Agreementhereunder.