This excerpt taken from the EBAY 8-K filed Apr 16, 2009.
7.2 Extension; Waiver.
(a) Subject to Section 7.2(b), at any time prior to the Acceptance Time, any party hereto may: (i) extend the time for the performance of any of the obligations or other acts of the other parties to this Agreement; (ii) waive any inaccuracy in or breach of any representation, warranty, covenant or obligation of the other party in this Agreement or in any document delivered pursuant to this Agreement; and (iii) waive compliance with any covenant, obligation or condition for the benefit of such party contained in this Agreement.
(b) No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any
other or further exercise thereof or of any other power, right, privilege or remedy. No party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
7.3 No Survival of Representations and Warranties. None of the representations and warranties contained in this Agreement or in any certificate delivered pursuant to this Agreement shall survive the Acceptance Time.
7.4 Entire Agreement; Counterparts; Exchanges by Facsimile or Electronic Delivery. This Agreement, the other agreements and exhibits referred to herein and the Company Disclosure Schedule constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof; provided, however, that the Prior Confidentiality Agreements and Sections 1 through 8, 10 through 13, 15 and 16 of the Current Confidentiality Agreement shall not be superseded and shall remain in full force and effect in accordance with its terms (it being understood that Sections 9 and 14 of the Current Confidentiality Agreement are being superseded by this Agreement and shall cease to have any force or effect as of the date of this Agreement). This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.
7.5 Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware; provided, however, that the actions of the Company Board, corporate conduct relating to the Company Board Meeting or the Company Shareholders Meeting and the exercise of shareholder rights in accordance with this Agreement, as well as any other matter which, under the internal affairs doctrine of the law of the State of Delaware, is governed by the laws of the Republic of Korea by reason of the Company being incorporated under the laws of the Republic of Korea, shall be governed exclusively by the laws of the Republic of Korea. In any action or suit between any of the parties arising out of or relating to this Agreement or any of the Contemplated Transactions, each of the parties: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts of the State of Delaware; (b) agrees that the state and federal courts of the State of Delaware, shall be deemed to be a convenient forum; (c) agrees not to assert (by way of motion, as a defense or otherwise), in any such action or suit commenced in the state and federal courts of the State of Delaware, any claim that the Company is not subject personally to the jurisdiction of such court, that such action or suit has been brought in an inconvenient forum, that the venue of such action or suit is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (d) irrevocably waives the right to trial by jury.
7.6 Attorneys Fees. In any action at law or suit in equity to enforce this Agreement or the rights of any of the parties hereunder, the prevailing party in such action or suit shall be entitled to receive a reasonable sum for its attorneys fees and all other reasonable costs and expenses incurred in such action or suit.
7.7 Assignability; No Third Party Rights . This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective successors and assigns (except as expressly provided in Section 5.3); provided, however, that: (a) the rights and obligations of Acquisition Sub under this Agreement may be assigned or delegated by Acquisition Sub to any affiliate of Acquisition Sub that is a direct or indirect wholly-owned Subsidiary of Parent without the consent of the Company or of any other Person, provided that such assignment shall not adversely affect the rights and interests of the holders of Company Securities, and in the event of any such assignment and/or delegation, all references in this Agreement to Acquisition Sub shall be deemed to instead refer to such affiliate; and (b) except as set forth in clause (a), neither this Agreement nor any partys rights or obligations hereunder may be assigned or delegated by such party without the prior written consent of the other parties, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by any party without the prior written consent of the other parties shall be void and of no effect. Except as specifically provided in Section 5.3, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
7.8 Disclosure Schedule. For purposes of this Agreement, each statement or other item of information set forth in a particular part or subpart of the Company Disclosure Schedule or in any update to the Company Disclosure Schedule shall be deemed to be incorporated into and become part of the representation and warranty contained in the corresponding Section or subsection of Section 2 as if such statement or other item of information were set forth in such Section or subsection of Section 2. Any update of or modification to (or purported update of or modification to) the Company Disclosure Schedule shall not have any legal effect under this Agreement, shall be disregarded for all purposes, and shall have no effect whatsoever on the rights or remedies of Parent or Acquisition Sub under this Agreement.
7.9 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given or made as follows: (a) if sent designated for overnight delivery by internationally recognized overnight air courier (such as Federal Express), three business days after delivery to such courier; (b) if sent by facsimile transmission, on the business day following transmission and confirmation of receipt; and (c) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice to the other parties to this Agreement:
if to Parent or Acquisition Sub:
2145 Hamilton Avenue
San Jose, CA 95125
Attention: General Counsel
Facsimile: (408) 376-7513
if to the Company:
9th Floor, LIG Tower
649-11 Yeoksam-Dong, Gangnam-Gu
Seoul 135-912, Korea
Attention: Mr. Young Bae Ku
with a copy (which shall not constitute notice) to:
Orrick, Herrington & Sutcliffe LLP
43rd Floor, Gloucester Tower
15 Queens Road Central
Attention: Mark J. Lee, Esq.
Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, California 94105-2669
Attention: Richard V. Smith, Esq.
Facsimile: (415) 773-5759
Pillsbury Winthrop Shaw Pittman LLP
2300 North Street, NW
Washington, DC 20037-1122
Attention: Robert B. Robbins, Esq.
Facsimile: (202) 513-8050
7.10 Cooperation. The Company agrees to cooperate with Parent and to execute and deliver such further documents, certificates, agreements and instruments and to take such other actions as may be reasonably requested by Parent to evidence or reflect the Contemplated Transactions and to carry out the intent and purposes of this Agreement.
7.11 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
7.12 Remedies. The rights and remedies of a party under this Agreement (including the rights and remedies set forth in Section 7.13) are not exclusive of or limited by any other rights or remedies which it may have, whether under this Agreement, at law, in equity, by contract or otherwise, all of which shall be cumulative (and not alternative).
7.13 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Each party agrees that, in the event of any breach or threatened breach by another party of any covenant or obligation of the other party contained in this Agreement, such party shall be entitled (in addition to any other remedy that may be available to it, whether in law or equity, including monetary damages) to seek and obtain: (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach. Each party further agrees that no other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 7.13, and such party irrevocably waives any right he or it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.