Common use of Entire Agreement; Third Party Beneficiaries Clause in Contracts

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Parent Disclosure Schedule and the exhibits hereto, together with the other and instruments referred to herein, including ) and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof, (b) are not intended to confer upon any Person or any of their respective successors and permitted assigns, other than the parties hereto, any rights, benefits, remedies, obligations or liabilities hereunder or to otherwise create any third-party beneficiary hereto, except for (i) prior to the Effective Time or earlier termination of this Agreement, the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards stockholders to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right pursue claims for damages based on loss of the Company, on behalf economic benefits of its shareholders, the transaction to pursue damages the stockholders of the Company in the event of Parent Parent’s or Merger Sub’s willful fraud or Knowing and material breach Intentional Breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iiiii) from and after the provisions Effective Time, as provided in this Section 9.6 and in Section 6.6 (which is intended for the benefit of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, Indemnified Parties and the Company hereby acknowledges D&O Indemnitees) and agrees that, except in Section 6.14 (which is intended for the representations benefit of the Financing Indemnitees); provided, that each of the Financing Sources shall be express third party beneficiaries of the first proviso in Section 9.1 (Amendment and warranties contained Modification), Section 9.8(b) (Governing Law), Section 9.9(b) (Jurisdiction), Section 9.11(b) (Specific Performance; Remedies), Section 9.16 (Waiver of Jury Trial) and this proviso in this Agreement (as modified by Section 9.6, each of such Sections shall expressly inure to the Company Disclosure Schedule, in the case benefit of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, Financing Sources and each of the parties Financing Sources shall be entitled to rely on and enforce the provisions of such Sections. The rights granted pursuant to the foregoing clause (i) of this Agreement, Section 9.6 shall be enforceable on behalf of itself, the stockholders of the Company only by the Company in its Affiliates, sole and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or impliedabsolute discretion, as agent for the stockholders of the Company, it being understood and agreed that any and all interests in any claims arising therefrom shall attach to the accuracy or completeness such shares of any informationCompany Common Stock and subsequently transfer therewith and, made by, or made available by, itselfconsequently, any of its Affiliates or any of its or their respective Representativesdamages, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation settlements or other information amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (A) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any one date determined by the Company or more (B) retained by the Company for the use and benefit of the foregoingCompany on behalf of its stockholders in any manner the Company deems fit.

Entire Agreement; Third Party Beneficiaries. (a) This Agreement, including the Company Disclosure Schedule, and the exhibits hereto, together with the other exhibits, annexes, and instruments referred to herein, including the Company Disclosure Letter, the Transaction Documents, the SLR Financing Documents to which the parties hereto are party to and the Confidentiality Agreement (a) shall constitute the entire agreement, agreement and shall supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties hereto with respect to the subject matter hereof hereof; provided, however, that the Confidentiality Agreement will survive the execution or termination of this Agreement and thereof will remain in full force and effect. Except for (a) if the Closing occurs, at and after the Effective Time, the rights of the holders of Shares to receive the Company Share Consideration and the rights of holders of Company Equity Awards to receive the Equity Award Consideration, (b) except as provided in Section 5.7 (which is intended for the benefit of each Indemnified Party, all of whom will be third-party beneficiaries of these provisions), (ic) as provided in Section 8.15 (which is intended for the benefit of each Non-Party Affiliate, all of whom will be third-party beneficiary of these provisions), (d) the rights of the Company’s shareholders Parent Related Parties and holders of the Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of Related Parties expressly provided thereto under this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, this Agreement is not intended to and shall not confer upon any Person other than the parties hereto any rights rights, benefits or remedies hereunder. Each of any nature whatsoever and (e) the right of the Company on behalf of the Company’s stockholders to pursue damages (including claims for damages based on loss of the economic benefits of the Contemplated Transactions to the Company’s stockholders) (subject to the Liability Limitation) in the event of Topco’s, Parent’s or Merger Sub’s failure to effect the Merger as required by this Agreement, which right is hereby expressly acknowledged and agreed by each of Topco, Parent and Merger Sub, each of whom shall each be jointly and severally liable for any such damages for which Topco, Parent or Merger Sub are found liable. The third-party beneficiary rights referenced in clause (e) of the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified immediately preceding sentence may be exercised only by the Company Disclosure Schedule, in the case of the representations and warranties (on behalf of the Company’s stockholders as their agent) through actions expressly approved by the Company Board (or any committee thereof, including the Special Committee), none of themin each case, subject to the Liability Limitation, and no Company stockholder, whether purporting to act in its capacity as a stockholder or purporting to assert any of their respective Affiliates right (derivatively or Representatives, or any other Person acting otherwise) on behalf of the Company, shall have any right or ability to exercise or cause the exercise of them, makesany such right. The exceptions and other information in the Company Disclosure Letter represent “facts ascertainable” as that term is used in Section 251(b) of the DGCL, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery do not form part of this Agreement or but instead operate upon the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives terms of any documentation or other information with respect to any one or more of the foregoingthis Agreement as provided herein.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement and the exhibits and schedules hereto (including the Company Disclosure Schedule, Letter) and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among between the parties, or any of them, with respect to the subject matter hereof and thereof thereof. Except as provided below and Section 5.5 (bwhich shall be for the benefit of the Company Employees) and Section 5.10 (which shall be for the benefit of the Indemnified Parties), this Agreement is not intended to and shall not confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns, except for (i) the right of the Company on behalf of its shareholders to pursue damages (including claims for damages based on loss of the economic benefits of the transaction to the Company’s shareholders) or other relief in the event of Parent’s or Merger Sub’s Willful and Material Breach of this Agreement and (ii) for in the event the Effective Time shall have occurred, the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock Options and Company LTIP Awards to receive the substitutions of awards pursuant to Section 2.3, at the Effective Time and the other actions (including, “lost premium” and time value of moneyincluding payments) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereundercontemplated by Section 2.3, which right is rights are hereby expressly acknowledged and agreed by Parent and Merger Sub. The third-party beneficiary rights referenced in clause (i) above may be exercised only by the Company (on behalf of its shareholders and holders of Company Options and Company LTIP Awards as their agent) through actions expressly approved by the Company Board at the sole and absolute discretion of the Company Board, and no shareholders of the Company or holders of Company Options or Company LTIP Awards whether purporting to act in its capacity as a shareholder, optionholder or Company LTIP Award holder or purporting to assert any right (iiiderivatively or otherwise) on behalf of the provisions Company, shall have any right or ability to exercise or cause the exercise of any such right, it being understood and agreed that any and all interests in such claims will attach to such Company Common Shares and subsequently trade and transfer therewith. The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with Section 5.88.11 without notice or liability to any other person. The representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Accordingly, is not intended to and shall not confer upon any Person persons other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for may not rely upon the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case characterizations of actual facts or circumstances as of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery date of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives as of any documentation or other information with respect to any one or more of the foregoingdate.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Schedule and the exhibits hereto, together with the other instruments referred to herein), including the Confidentiality Agreement and the Equity Commitment Letter (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof hereof, and (b) ), except for (i) the rights of the Company’s shareholders as provided in Article III on and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective TimeTime and Section 6.4(b) and Section 6.6, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is are not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each Notwithstanding any other provision of this Agreement, but without limiting the right of the Company to receive the Parent Termination Fee and the related costs, expenses and interest to the extent provided in Section 8.2(c) or the Equity Commitment Letter, the maximum aggregate liability of Parent, Merger Sub, Sub and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by Investors to the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its Affiliates and their respective Representatives, hereby disclaims any other representations, warranties Representatives relating to or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery arising out of this Agreement or the Transactions transactions contemplated herebyhereby under any theory shall in no event exceed the Parent Termination Fee and the related costs, notwithstanding the delivery or disclosure expenses and interest to the other extent provided in Section 8.2(c) or the other’s Representatives Equity Commitment Letter, and upon payment of such amounts the Company shall not, directly or indirectly, recover or seek to recover under any documentation theory any amount in excess of such aggregate amount from Parent, Sub and the Investors relating to or other information with respect arising out of this Agreement or the transactions contemplated hereby (it being understood and agreed that the obligations of each Investor are limited to any one the obligations of such Investor expressly provided in the Equity Commitment Letter), provided, however that nothing herein shall relieve Parent or more Sub of liability to pay the foregoingMerger Consideration, Option Consideration, Performance Award Consideration and all fees and expenses related to the transactions contemplated by this Agreement in the event the Merger occurs.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Parent Disclosure Schedule and the exhibits hereto, together with (including the other Bermuda Merger Agreement) and instruments referred to herein), including the Joint Defense Agreement and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and (b) are not intended to confer upon any Person other than the parties hereto any rights, benefits, remedies, obligations or liabilities hereunder except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards Registered Shareholders to receive the Merger Consideration and payments pursuant the rights of the holders of the Company Stock Options and Company Restricted Share Units and Company Performance Restricted Share Units to Article IIreceive the Merger Consideration, respectivelythe Converted Parent Options, after the Converted RSUs or the Converted PRSUs, as the case may be, following the Effective TimeTime in accordance with Article III, (ii) except as set forth in Section 8.2(h), the right of (x) the Company, on behalf of its shareholdersshareholders and the holders of the Company Stock Options, Company Restricted Share Units and Company Performance Restricted Share Units, to pursue damages in the event of Parent Parent’s or Merger Sub’s fraud or willful and material intentional (with the intent of breaching this Agreement) breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Sub including damages based on loss of the economic and bargain benefits of the Merger Subto the Company’s shareholders based on the consideration that would have otherwise been payable to holders of Company Common Shares, the loss of market value or decline in share price of such Company Common Shares or otherwise (taking into consideration relevant matters, including other combination or other opportunities and the time value of money) and (iiiy) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itselfits shareholders and other equityholders, its Affiliatesto pursue damages in the event of the Company’s fraud or willful and intentional (with the intent of breaching this Agreement) breach of this Agreement, which right is hereby acknowledged and its agreed by the Company including damages based on loss of the economic and their respective Representativesbargain benefits of the Merger to Parent’s shareholders and other equityholders, hereby disclaims any the loss of market value or decline in share price of Parent Ordinary Shares or otherwise (taking into consideration relevant matters, including other representationsopportunities and the time value of money), warranties or inducements(iii) as provided in Section 6.6 (which is intended for the benefit of the Indemnified Parties and the D&O Indemnitees), express or implied, as (iv) with respect to the accuracy or completeness of any informationDebt Financing Sources, made bySections 8.2(h), or made available by9.6, itself9.8, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information 9.9 and 9.11(d) and (v) with respect to any one or more Related Parties of each of Parent and the foregoingCompany (including the equityholders of Freescale Holdings L.P.), Section 8.2(h).

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure ScheduleTender Agreement, the Tri-Party Agreement, the Joint Defense Agreement and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement Agreement: (ai) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof of this Agreement and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is are not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunderwhatsoever, except (x) if the Effective Time occurs, with respect to Article III, (y) the indemnified parties pursuant to Section 6.7 (who are intended third party beneficiaries thereunder) and (z) for the right of the Company, acting on behalf of the holders of Shares, to pursue any remedies or damages against Parent or Purchaser on behalf of such holders by reason of the proviso set forth in Section 8.2. Each In any successful action, suit or proceeding to enforce any provision of Parent, Merger Subthis Agreement referred to in clauses (x) or (y) of the preceding sentence, and without limiting any other remedies, each third party beneficiary commencing or participating in such action, suit or proceeding shall be entitled to recover from Parent all costs and reasonable attorneys’ fees incurred by it in connection therewith. The representations and warranties in this Agreement are the Company hereby acknowledges product of negotiations among the parties hereto and agrees thatare for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with Article VII without notice or liability to any other Person. In some instances, except for the representations and warranties contained in this Agreement (as modified by may represent an allocation among the Company Disclosure Scheduleparties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently, in Persons other than the case of parties hereto may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery date of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives as of any documentation or other information with respect to any one or more of the foregoingdate.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Exhibits hereto and the exhibits hereto, together with documents and the other instruments referred to herein), including the Confidentiality Agreement and any agreements entered into contemporaneously herewith (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, Parties with respect to the subject matter hereof and thereof thereof; provided, however, (x) any provisions of the Confidentiality Agreement conflicting with this Agreement shall be superseded by this Agreement and (y) all standstill or similar provisions set forth in the Confidentiality Agreement shall be superseded to the extent necessary to permit Parent and the Company to make additional proposals under Section 5.02(b) or Section 6.03(b), respectively, and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is are not intended to and shall not confer any rights, benefits, remedies, obligations or liabilities upon any Person other than the parties Parties hereto and their respective successors and permitted assigns; provided, however, notwithstanding the foregoing clause (b), following the Effective Time, the provisions of Section 6.06 shall be enforceable by each Party entitled to indemnification hereunder and his or her heirs and his or her representatives; provided, further, that the Lenders, any rights arrangers, investors, potential agents, potential arrangers, potential lenders, potential investors, underwriters, initial purchasers and placement agents providing or remedies hereunder. Each of Parentpotentially providing, Merger Subor acting in connection with, any Debt Financing, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any each of their respective Affiliates and their respective current, former and future direct or Representativesindirect equity holders, controlling persons, stockholders, agents, Affiliates, members, managers, general or any other Person acting on behalf of any of themlimited partners, makesofficers, directors, employees, advisors, attorneys or representatives and none of them or any each of their respective Representatives relies on or has been induced by any other representationssuccessors and assigns (each, warrantiesa “Financing Source Party”, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection withcollectively, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information “Financing Source Parties”) shall be express third party beneficiaries with respect to any one or more of Section 9.03, Section 10.02, this Section 10.07, Section 10.10, Section 10.12 and Section 10.13 (collectively, the foregoing“FS Provisions”).

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, and the exhibits hereto, Agreement (together with the Confidentiality Agreement, the other Transaction Documents and any other documents and instruments referred to herein, including the Confidentiality Agreement (aexecuted pursuant hereto) constitute constitutes the entire agreement, agreement and supersede supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof. Except for the provisions of Article III (b) except including, for (i) the avoidance of doubt, the rights of the Company’s shareholders and former holders of Company RSUs and Company Performance Share Awards Common Stock to receive the Merger Consideration Consideration) and payments pursuant to Article II, respectively, Sections 6.9 and 6.10 (which from and after the Effective TimeTime are intended for the benefit of, (ii) and shall be enforceable by, the right of the CompanyPersons referred to therein and by their respective heirs and representatives), on behalf of its shareholders, to pursue damages nothing in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8express or implied, is not intended to and or shall not confer upon any Person other than the parties hereto any rights right, benefit or remedies hereunderremedy of any nature whatsoever under or by reason of this Agreement. Each of Parent, Merger Sub, and Notwithstanding the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Scheduleforegoing, in the case event of the representations Parent’s or Merger Sub’s intentional and warranties material breach of this Agreement or intentional fraud as a result of which damages would be payable pursuant to Section 8.3(j), then the Company)’s stockholders, none acting solely through the Company, shall be beneficiaries of themthis Agreement and shall be entitled to pursue any and all legally available remedies, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makesincluding equitable relief, and none to seek recovery of them or any all losses, liabilities, damages, costs and expenses of their respective Representatives relies on or has been induced by any other representationsevery kind and nature, warrantiesincluding reasonable attorneys’ fees; provided, information (including estimateshowever, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of that the parties rights granted pursuant to this Agreementsentence shall be enforceable only by the Company, on behalf of itselfthe Company stockholders, its Affiliatesin the Company’s sole discretion, it being understood and its agreed such rights shall attach to such shares of Company Stock and their respective Representativessubsequently trade and transfer therewith and, hereby disclaims consequently, any other representationsdamages, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made bysettlements, or made available by, itself, any of its Affiliates other amounts recovered or any of its or their respective Representatives, with respect to, or in connection with, received by the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information Company with respect to such rights may, in the Company’s sole discretion, be (a) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any one date determined by the Company or more (b) retained by the Company for the use and benefit of the foregoingCompany on behalf of its stockholders in any manner the Company deems fit.

Entire Agreement; Third Party Beneficiaries. This Agreement, including Agreement (together with the Company Disclosure Schedule, Letter and the exhibits heretoParent Disclosure Letter), together with the Confidentiality Agreement, the other Transaction Agreements and any other documents and instruments referred to herein, including the Confidentiality Agreement (a) executed pursuant hereto constitute the entire agreement, agreement and supersede supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof. Except for the provisions of Article III (b) except including, for (i) the avoidance of doubt, the rights of the Company’s shareholders and former holders of Company RSUs and Common Stock, Company Performance Share Preferred Stock or Company Equity Awards to receive the Merger Consideration Consideration), Section 6.9 (which from and payments pursuant to Article II, respectively, after the Effective TimeTime are intended for the benefit of, (ii) and shall be enforceable by, the right of the CompanyPersons referred to therein and by their respective heirs and representatives), on behalf of its shareholders, to pursue damages nothing in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8express or implied, is not intended to and or shall not confer upon any Person other than the parties hereto any rights right, benefit or remedies hereunderremedy of any nature whatsoever under or by reason of this Agreement. Each of Parent, Merger Sub, and Notwithstanding the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Scheduleforegoing, in the case event of the representations Parent’s, Merger Sub 1’s or Merger Sub 2’s Willful and warranties Material Breach of this Agreement or intentional and knowing fraud, then the Company)’s stockholders, none acting solely through the Company, shall be beneficiaries of themthis Agreement and shall be entitled to pursue any and all legally available remedies, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makesincluding equitable relief, and none to seek recovery of them or any all losses, liabilities, damages, costs and expenses of their respective Representatives relies on or has been induced by any other representationsevery kind and nature, warrantiesincluding reasonable attorneys’ fees; provided, information (including estimateshowever, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of that the parties rights granted pursuant to this Agreementsentence shall be enforceable only by the Company, on behalf of itselfthe Company stockholders, its Affiliatesin the Company’s sole discretion, it being understood and its agreed such rights shall attach to such shares of Company Stock and their respective Representativessubsequently trade and transfer therewith and, hereby disclaims consequently, any other representationsdamages, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made bysettlements, or made available by, itself, any of its Affiliates other amounts recovered or any of its or their respective Representatives, with respect to, or in connection with, received by the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information Company with respect to such rights may, in the Company’s sole discretion, be (a) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any one date determined by the Company or more (b) retained by the Company for the use and benefit of the foregoingCompany on behalf of its stockholders in any manner the Company deems fit.

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, and the exhibits hereto, Agreement (together with the any other documents and instruments referred to herein, including the Confidentiality Agreement (aexecuted pursuant hereto) constitute constitutes the entire agreement, agreement and supersede supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof. Except for the provisions of Article III (b) except including, for (i) the avoidance of doubt, the rights of the Company’s shareholders and former holders of Company RSUs and Company Performance Share Awards Class A Common Stock to receive the Merger Consideration Consideration) and payments pursuant to Article II, respectively, Section 6.7 (which from and after the Effective TimeTime are intended for the benefit of, (ii) and shall be enforceable by, the right of the CompanyPersons referred to therein and by their respective heirs and representatives), on behalf of its shareholders, to pursue damages nothing in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8express or implied, is not intended to and or shall not confer upon any Person other than the parties hereto any rights right, benefit or remedies hereunderremedy of any nature whatsoever under or by reason of this Agreement. Each of Parent, Merger Sub, and Notwithstanding the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Scheduleforegoing, in the case event of the representations Parent’s or Merger Sub’s Willful and warranties of Material Breach or fraud, the Company)’s stockholders, none acting solely through the Company, shall be beneficiaries of themthis Agreement and shall be entitled to pursue any and all legally available remedies, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makesincluding equitable relief, and none to seek recovery of them or any all losses, liabilities, damages, costs and expenses of their respective Representatives relies on or has been induced by any other representationsevery kind and nature, warrantiesincluding reasonable attorneys’ fees; provided, information (including estimateshowever, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of that the parties rights granted pursuant to this Agreementsentence shall be enforceable only by the Company, on behalf of itselfthe Company stockholders, its Affiliatesin the Company’s sole discretion, it being understood and its agreed such rights shall attach to such shares of Company Stock and their respective Representativessubsequently trade and transfer therewith and, hereby disclaims consequently, any other representationsdamages, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made bysettlements, or made available by, itself, any of its Affiliates other amounts recovered or any of its or their respective Representatives, with respect to, or in connection with, received by the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information Company with respect to such rights may, in the Company’s sole discretion, be distributed, in whole or in part, by the Company to the holders of shares of Company Class A Common Stock of record as of any one date determined by the Company or more retained by the Company for the use and benefit of the foregoingCompany on behalf of its stockholders in any manner the Company deems fit.

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Xxxxxx Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent Xxxxxx and Merger Xxxxxx Sub, and (iii) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Exhibits and Annexes hereto and the exhibits hereto, together with documents and the other instruments referred to herein), including the Confidentiality Agreement and any agreements entered into contemporaneously herewith (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, Parties with respect to the subject matter hereof and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is are not intended to and shall not confer any rights, benefits, remedies, obligations or liabilities upon any Person other than the parties Parties hereto any rights and their respective successors and assigns, except, that notwithstanding the foregoing clause (b), (i) following the Effective Time, the provisions of Section 6.8 shall be enforceable by each Person entitled to indemnification hereunder and his or remedies hereunder. Each her heirs and his or her representatives; (ii) following the Effective Time, the provisions hereof shall be enforceable by shareholders of Parent, Merger Sub, and the Company hereby acknowledges and agrees thatto the extent necessary to receive the Merger Consideration to which each such shareholder is entitled to pursuant to ARTICLE III; (iii) following the Effective Time, except for the representations and warranties contained in this Agreement (as modified provisions hereof shall be enforceable by the holders of Company Disclosure ScheduleStock Options to the extent necessary to receive the aggregate Company Stock Option payments pursuant to Section 6.10(a); (iv) following the Effective Time, the provisions hereof shall be enforceable by the holders of Company RSUs to the extent necessary to receive the aggregate Company RSU payments pursuant to Section 6.10(b); (v) following the Effective Time, the provisions hereof shall be enforceable by the holders of Deferred Share Rights to the extent necessary to receive the aggregate Deferred Share Rights payments pursuant to Section 6.10(c); and (vi) following the Effective Time, the provisions hereof shall be enforceable by the participants in the case Company ESPP to the extent necessary to receive the aggregate Company ESPP payments pursuant to Section 6.10(d). Notwithstanding the foregoing, each Financing Source shall be an express third party beneficiary of and shall be entitled to rely upon and enforce the representations and warranties last sentence of the CompanySection 6.6(a), none of themSections 9.1, or any of their respective Affiliates or Representatives9.2, or any other Person acting on behalf of any of them9.11, makes9.12 and 9.13 and this Section 9.6. In addition, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this AgreementCompany agrees, on behalf of itself, its Affiliates, and its Affiliates and their respective directors, officers, managers, members, stockholders (other than Parent or Merger Sub and their respective Affiliates), partners, employees, agents, Representatives, successors and permitted assigns (collectively, the “Company Related Parties”) that (x) the Financing Source Related Parties shall be subject to no liability or claims (whether legal or equitable, arising under contract, tort or otherwise) by the Company or the Company Related Parties arising out of or relating to this Agreement, the ABL Financing, the ABL Commitment Letter, the Financing Documents or the transactions contemplated hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection withwith the ABL Financing, or the negotiationperformance of services by such Financing Source Related Parties with respect to the foregoing and (y) the Cavendish Related Parties shall be subject to no liability or claims (whether legal or equitable, execution arising under contract, tort or delivery otherwise) by the Company or the Company Related Parties arising out of or relating to this Agreement or the Transactions transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Schedule and the exhibits hereto, together with the other and instruments referred to herein, including ) and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof, (b) are not intended to confer upon any Person or any of their respective successors and permitted assigns, other than the parties hereto, any rights, benefits, remedies, obligations or liabilities hereunder or to otherwise create any third-party beneficiary hereto, except for (i) prior to the Effective Time or earlier termination of this Agreement, the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards stockholders to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right pursue claims for damages based on loss of the Company, on behalf economic benefits of its shareholders, the transaction to pursue damages the stockholders of the Company in the event of Parent Parent’s or Merger Sub’s willful fraud or Knowing and material breach Intentional Breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iiiii) from and after the provisions Effective Time, as provided in this Section 10.6 and in Section 7.6 (which is intended for the benefit of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, Indemnified Parties and the D&O Indemnitees). The rights granted pursuant to the foregoing clause (i) of this Section 10.6 shall be enforceable on behalf of the stockholders of the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified only by the Company Disclosure Schedulein its sole and absolute discretion, as agent for the stockholders of the Company, it being understood and agreed that any and all interests in any claims arising therefrom shall attach to such shares of Company Common Stock and subsequently transfer therewith and, consequently, any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the case Company’s sole and absolute discretion, be (A) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any date determined by the Company or (B) retained by the Company for the use and benefit of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting Company on behalf of its stockholders in any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of manner the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoingCompany deems fit.

Entire Agreement; Third Party Beneficiaries. This Agreement, including taken together with the Company AirTran Disclosure ScheduleLetter and the Southwest Disclosure Letter, and the exhibits heretoConfidentiality Agreement, together with the other instruments referred to herein, including the Confidentiality Agreement (a) constitute constitutes the entire agreement, and supersede supersedes all other prior agreements (other than the Confidentiality Agreement) and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof Merger and thereof the other transactions contemplated by this Agreement and (b) except for is not intended to confer upon any Person other than the parties any rights or remedies other than (i) the rights of the Company’s shareholders as provided in Section 6.7 and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the CompanyAirTran, on behalf of its shareholdersstockholders as third-party beneficiaries only to the extent specifically set forth herein, to pursue damages and other relief, including equitable relief, in the event of Parent fraud or Southwest’s or Merger Sub’s willful intentional and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent Southwest and Merger Sub; provided, and however, that the rights granted pursuant to this clause (iiiii) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting be enforceable on behalf of holders of AirTran Common Stock only by AirTran in its sole and absolute discretion, it being understood and agreed that any and all interests in such claims shall attach to such shares of themAirTran Common Stock and subsequently trade and transfer therewith and, makesconsequently, any damages, settlements, or other amounts recovered or received by AirTran with respect to such claims (net of expenses incurred by AirTran in connection therewith) may, in AirTran’s sole and none absolute discretion, be (x) distributed, in whole or in part, by AirTran to the holders of them shares of AirTran Common Stock of record as of any date determined by AirTran or any (y) retained by AirTran for the use and benefit of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, AirTran on behalf of itself, its Affiliates, stockholders in any manner AirTran deems fit. Each party agrees that the rights of third party beneficiaries under Section 6.7 shall not arise unless and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to until the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoingEffective Time occurs.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Schedule and the exhibits hereto, together with the other and instruments referred to herein, including ) and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof, (b) are not intended to confer upon any Person or any of their respective successors and permitted assigns, other than the parties hereto, any rights, benefits, remedies, obligations or liabilities hereunder or to otherwise create any third-party beneficiary hereto, except for (i) prior to the Effective Time or earlier termination of this Agreement, the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards stockholders to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right pursue claims for damages based on loss of the Company, on behalf economic benefits of its shareholders, the transaction to pursue damages the stockholders of the Company in the event of Parent Parent’s or Merger Sub’s willful fraud or Knowing and material breach Intentional Breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iiiii) from and after the provisions Effective Time, as provided in this Section 10.6 and in Section 7.6 (which is intended for the benefit of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, Indemnified Parties and the Company hereby acknowledges D&O Indemnitees) and agrees that, except in Section 7.13 (which is intended for the representations benefit of the Financing Indemnitees); provided, that each of the Financing Sources shall be express third party beneficiaries of the first proviso in Section 10.1(Amendment and warranties contained Modification), Section 10.8(b) (Governing Law), Section 10.9(b) (Jurisdiction), Section 10.11(b) (Specific Performance; Remedies), Section 10.16 (Waiver of Jury Trial) and this proviso in this Agreement (as modified by Section 10.6, each of such Sections shall expressly inure to the Company Disclosure Schedule, in the case benefit of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, Financing Sources and each of the parties Financing Sources shall be entitled to rely on and enforce the provisions of such Sections. The rights granted pursuant to the foregoing clause (i) of this Agreement, Section 10.6 shall be enforceable on behalf of itself, the stockholders of the Company only by the Company in its Affiliates, sole and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or impliedabsolute discretion, as agent for the stockholders of the Company, it being understood and agreed that any and all interests in any claims arising therefrom shall attach to the accuracy or completeness such shares of any informationCompany Common Stock and subsequently transfer therewith and, made by, or made available by, itselfconsequently, any of its Affiliates or any of its or their respective Representativesdamages, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation settlements or other information amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (A) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any one date determined by the Company or more (B) retained by the Company for the use and benefit of the foregoingCompany on behalf of its stockholders in any manner the Company deems fit.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure ScheduleExhibits, Schedules and the exhibits hereto, together with Parties’ disclosure letters) and the other instruments referred to herein, including the Confidentiality Nondisclosure Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among between the parties, or any of them, Parties with respect to their subject matter. This Agreement will be binding upon and inure solely to the subject matter hereof benefit of each Party, and thereof nothing in this Agreement, express or implied, is intended to or will confer upon any Person not a party to this Agreement any rights, benefits or remedies of any nature whatsoever; provided that notwithstanding the foregoing (a) each stockholder of the Company will be a third party beneficiary of this Agreement for the purpose of pursuing claims for damages under this Agreement in the event of a failure by Parent or Merger Sub to irrevocably accept for purchase all shares of Common Stock validly tendered and not validly withdrawn as of the Expiration Time by the end of the period specified in Section 2.5 or otherwise to effect the Merger as required by this Agreement, or in the event of a breach of this Agreement by Parent or Merger Sub that contributed to a failure of any of the conditions to the Offer or the Closing to be satisfied, (b) except for (i) from and after the rights Acceptance Time, the provisions of Article II relating to the payment of the Company’s shareholders and Offer Price will be enforceable by the holders of Company RSUs Common Stock immediately prior to the Acceptance Time who validly tendered and Company Performance Share Awards to receive the Merger Consideration and payments did not withdraw shares of Common Stock pursuant to Article IIthe Offer, respectively, (c) from and after the Effective Time, the provisions of Article III relating to the payment of the Merger Consideration and any other consideration to be paid pursuant to Section 3.7 will be enforceable by the holders of Common Stock immediately prior to the Effective Time and by the Persons entitled to receive such other consideration, (iid) from and after the Acceptance Time, the Indemnified Persons will be third party beneficiaries of and entitled to enforce Section 8.6 and (e) the right Financing Sources are intended third party beneficiaries of this Section 11.3, Section 11.6, Section 11.7, Section 11.8, and Section 11.9 and will be entitled to enforce such provisions directly. The rights granted pursuant to clause (a) above will be enforceable only by the Company on behalf of the stockholders of the Company, on behalf of its shareholders, to pursue damages and any amounts received in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable connection therewith may be retained by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to Company. Parent’s obligations under the total amount that would have been recoverable by the holders Nondisclosure Agreement will terminate as of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoingClosing.

Entire Agreement; Third Party Beneficiaries. This AgreementAgreement (including the Exhibits, including the Company Disclosure ScheduleLetter, the Parent Disclosure Letter and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement Agreement) (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is are not intended to and shall do not confer upon any Person other than the parties hereto any legal or equitable rights or remedies hereunderremedies. Each Notwithstanding the foregoing clause (b), (i) following the Effective Time, (A) each holder of Company Common Stock shall be entitled to enforce the provisions of Article II to the extent necessary to receive the Merger Consideration to which such holder is entitled pursuant to Article II and (B) the provisions of Section 6.4 shall be enforceable by each Indemnified Party and his or her heirs and his or her representatives and (ii) the Company shall have the right on behalf of its stockholders to pursue damages in the event of Parent, Merger ’s or Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in ’s willful breach of this Agreement (as modified whether or not the Agreement has been terminated pursuant to Article VIII), which rights are hereby acknowledged and agreed to by Parent and Sub. The third-party beneficiary rights referenced in clause (ii) of the preceding sentence of this Section 9.6 may be exercised only by the Company Disclosure Schedule, in (on behalf of its stockholders or as their agent) through actions expressly approved by the case Board of the representations and warranties Directors of the Company), none and no stockholder of them, the Company whether purporting to act in its capacity as a stockholder or purporting to assert any of their respective Affiliates right (derivatively or Representatives, or any other Person acting otherwise) on behalf of the Company, shall have any right or ability to exercise or cause the exercise of them, makesany such right, and none of them or if any of their respective Representatives relies on or has been induced Action by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, stockholder with respect to, or in connection with, the negotiation, execution or delivery to a breach of this Agreement or is not dismissed based on pleadings, the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoingthird-party beneficiary rights contained in clause (ii) shall no longer apply.

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, Agreement and the exhibits hereto, together with documents and instruments and other agreements among the other instruments parties hereto as contemplated by or referred to herein, including the Confidentiality Agreement (a) Company Disclosure Letter, constitute the entire agreement, agreement among the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof hereof, including the Prior Agreement, it being understood that the Confidentiality Agreement shall continue in full force and thereof effect until the Closing and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach shall survive any termination of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained Nothing in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement other than (a) as specifically provided in Section 5.7 and Section 5.8; (b) the rights of Company Securityholders and the Other Participants to pursue claims for damages and other relief for Parent’s or Merger Sub’s breach of this Agreement; (c) the rights of holders of the Company Securityholders to receive the consideration specified in this Agreement; and (d) following the Closing, the rights of payees to receive the amounts described in Section 5.7(b); provided, however, that if the Closing does not occur, the rights granted pursuant to clause (b) shall only be enforceable on behalf of such Company Securityholders and the Other Participants by the Company, or, following the Closing, the Representative, in their sole and absolute discretion. Subject in all respects to Section 7.3(e), each of the Parent and Merger Sub acknowledges and agrees that it has made its own inquiry and investigation into, and, based thereon, has formed an independent judgment concerning, the Company and its businesses and operations, and Parent and Merger Sub have been furnished with or given full access to such information about the Company and its businesses and operations as they requested. Subject in all respects to Section 7.3(e), Parent and Merger Sub acknowledge and agree that (i) there are uncertainties inherent in attempting to make such projections, forecasts, estimates, plans and budgets; (ii) Parent and Merger Sub are familiar with such uncertainties; and (iii) Parent and Merger Sub are taking full responsibility for making their own evaluations of the adequacy and accuracy of all estimates, projections, forecasts, plans and budgets so furnished to them or their representatives. Subject in all respects to Section 7.3(e), Parent and Merger Sub each acknowledge that, except as expressly set forth in Article II, there are no representations or warranties of any kind, express or implied, by the Company or any other Person, including (A) with respect to the Company, its Subsidiaries, or their assets and liabilities, or the transactions contemplated hereby, and (B) as to the accuracy or completeness of any information, made by, information regarding the Company furnished or made available byto Parent, itselfMerger Sub and their representatives (including any projections, any forecasts, estimates, plans or budgets). Without limiting the generality of its Affiliates the foregoing, except as expressly set forth in this Agreement, there are no express or any implied warranties of its merchantability or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information fitness for a particular purpose with respect to any one or more of the foregoingCompany’s tangible personal property.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, documents and the exhibits hereto, together with the other instruments referred to herein, including ) and the Confidentiality Agreement Agreement: (ai) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof of this Agreement and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is are not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunderwhatsoever, except (w) for the rights of the Company stockholders to receive the applicable merger consideration at the Effective Time pursuant to Article III, (x) for the rights of the Indemnified Parties pursuant to Section 6.7 (who are intended third party beneficiaries thereunder and are intended to be the only third party beneficiaries thereunder), (y) for the right of the Company, acting on behalf of the holders of Shares, to pursue any remedies or damages against Parent or Purchaser on behalf of such holders by reason of the proviso set forth in Section 8.2 and (z) for the rights of the Debt Financing Sources pursuant to this Section 9.6 and Sections 8.3(c), 9.8, 9.9 and 9.12 (who are intended third party beneficiaries thereunder and are intended to be the only third party beneficiaries thereunder). Each In any successful action, suit or proceeding to enforce any provision of Parent, Merger Subthis Agreement referred to in clauses (w) or (x) of the preceding sentence, and without limiting any other remedies, each third party beneficiary commencing or participating in such action, suit or proceeding shall be entitled to recover from Parent all costs and reasonable attorneys’ fees incurred by it in connection therewith. The representations and warranties in this Agreement are the Company hereby acknowledges product of negotiations among the parties hereto and agrees thatare for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with Article VII without notice or liability to any other Person. In some instances, except for the representations and warranties contained in this Agreement (as modified by may represent an allocation among the Company Disclosure Scheduleparties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently, in Persons other than the case of parties hereto may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery date of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives as of any documentation or other information with respect to any one or more of the foregoingdate.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Schedule and the exhibits hereto, together with the other and instruments referred to herein, including ) and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof, (b) are not intended to confer upon any Person or any of their respective successors and permitted assigns, other than the parties hereto, any rights, benefits, remedies, obligations or liabilities hereunder or to otherwise create any third-party beneficiary hereto, except for (i) prior to the Effective Time or earlier termination of this Agreement, the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards stockholders to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right pursue claims for damages based on loss of the Company, on behalf economic benefits of its shareholders, the transaction to pursue damages the stockholders of the Company in the event of Parent Parent’s or Merger Sub’s willful fraud or Knowing and material breach Intentional Breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iiiii) from and after the provisions Effective Time, as provided in this Section 10.6 and in Section 7.6 (which is intended for the benefit of Section 5.8, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, Indemnified Parties and the Company hereby acknowledges D&O Indemnitees) and agrees that, except in Section 7.13 (which is intended for the representations benefit of the Financing Indemnitees); provided, that each of the Financing Sources shall be express third party beneficiaries of the first proviso in Section 10.1 (Amendment and warranties contained Modification), Section 10.8(b) (Governing Law), Section 10.9(b) (Jurisdiction), Section 10.11(b) (Specific Performance; Remedies), Section 10.16 (Waiver of Jury Trial) and this proviso in this Agreement (as modified by Section 10.6, each of such Sections shall expressly inure to the Company Disclosure Schedule, in the case benefit of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, Financing Sources and each of the parties Financing Sources shall be entitled to rely on and enforce the provisions of such Sections. The rights granted pursuant to the foregoing clause (i) of this Agreement, Section 10.6 shall be enforceable on behalf of itself, the stockholders of the Company only by the Company in its Affiliates, sole and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or impliedabsolute discretion, as agent for the stockholders of the Company, it being understood and agreed that any and all interests in any claims arising therefrom shall attach to the accuracy or completeness such shares of any informationCompany Common Stock and subsequently transfer therewith and, made by, or made available by, itselfconsequently, any of its Affiliates or any of its or their respective Representativesdamages, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation settlements or other information amounts recovered or received by the Company with respect to such claims (net of expenses incurred by the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (A) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any one date determined by the Company or more (B) retained by the Company for the use and benefit of the foregoingCompany on behalf of its stockholders in any manner the Company deems fit.

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, and the exhibits hereto, Agreement (together with the Confidentiality Agreement, the other Transaction Documents and any other documents and instruments referred to herein, including the Confidentiality Agreement (aexecuted pursuant hereto) constitute constitutes the entire agreement, agreement and supersede supersedes all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and hereof. Except for the provisions of Article III (b) except including, for (i) the avoidance of doubt, the rights of the Company’s shareholders and former holders of Company RSUs and Common Stock, Company RSU Awards and/or Company Performance Share Awards to receive the Merger Consideration Consideration), Section 6.10 (which from and payments pursuant to Article II, respectively, after the Effective TimeTime are intended for the benefit of, (ii) and shall be enforceable by, the right of the CompanyPersons referred to therein and by their respective heirs and representatives), on behalf of its shareholders, to pursue damages nothing in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8express or implied, is not intended to and or shall not confer upon any Person other than the parties hereto any rights right, benefit or remedies hereunderremedy of any nature whatsoever under or by reason of this Agreement. Each of Parent, Merger Sub, and Notwithstanding the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Scheduleforegoing, in the case event of the representations Parent’s or Merger Sub’s Willful and warranties Material Breach of this Agreement or intentional and knowing fraud, then the Company)’s shareholders, none acting solely through the Company, shall be beneficiaries of themthis Agreement and shall be entitled to pursue any and all legally available remedies, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makesincluding equitable relief, and none to seek recovery of them or any all losses, liabilities, damages, costs and expenses of their respective Representatives relies on or has been induced by any other representationsevery kind and nature, warrantiesincluding reasonable attorneys’ fees; provided, information (including estimateshowever, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of that the parties rights granted pursuant to this Agreementsentence shall be enforceable only by the Company, on behalf of itselfthe Company shareholders, its Affiliatesin the Company’s sole discretion, it being understood and its agreed such rights shall attach to such shares of Company Stock and their respective Representativessubsequently trade and transfer therewith and, hereby disclaims consequently, any other representationsdamages, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made bysettlements, or made available by, itself, any of its Affiliates other amounts recovered or any of its or their respective Representatives, with respect to, or in connection with, received by the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information Company with respect to such rights may, in the Company’s sole discretion, be (a) distributed, in whole or in part, by the Company to the holders of shares of Company Common Stock of record as of any one date determined by the Company or more (b) retained by the Company for the use and benefit of the foregoingCompany on behalf of its shareholders in any manner the Company deems fit.

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, Schedule and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement Agreement, (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards Equityholders to receive the Merger applicable portion of the Total Consideration at and payments pursuant to Article II, respectively, after following the Effective TimeClosing, (ii) the right of the CompanyCompany prior to the Closing, on behalf of its shareholdersUnitholders and Blocker Holdings, to pursue damages in the event of Parent Purchaser or Merger Sub’s willful and material 's breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders Unitholders (without duplication) and Blocker Holdings shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” Unitholders and time value of money) Blocker Holdings if all such holders Unitholders and Blocker Holdings brought an action against Parent Purchaser and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent Purchaser and Merger Sub, and (iii) the provisions rights of the Non-Recourse Parties under Section 5.812.16, (iv) the rights of Retained Counsel under Section 12.17, (v) the rights of the Equityholders' respective Affiliates and Representatives under Section 12.1, (vi) the rights of Debt Financing Source Related Parties under Section 12.4, this Section 12.8, Section 12.9(d), Section 12.11 and Section 12.19, (vii) the rights of the Indemnitees under Section 7.9, and (viii) as otherwise expressly provided herein, is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Broadcom Disclosure Schedule, Avago Disclosure Schedule and the exhibits hereto, together with the other and instruments referred to herein), including the California Merger Agreement(s), the Confidentiality Agreement and any Joinder executed by an Avago Party following the date hereof (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and (b) except for (i) the rights of the CompanyBroadcom’s shareholders and holders of Company RSUs and Company Performance Share Awards to receive the Broadcom Merger Consideration and payments pursuant to following the Broadcom Effective Times in accordance with Article II, respectively, after the Effective TimeIII, (ii) the right of the CompanyBroadcom, on behalf of its shareholders, to pursue damages in the event of Parent any Avago Party’s fraud or Merger Sub’s willful Knowing and material breach Intentional Material Breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent each of the Avago Parties including damages based on loss of the economic and Merger Subbargain benefits of the Transactions to Broadcom’s shareholders based on the consideration that would have otherwise been payable to holders of Broadcom Common Shares, the loss of market value or decline in share price of such Broadcom Common Shares or otherwise (taking into consideration relevant matters, including other combination or other opportunities and the time value of money) and (iii) as provided in Section 6.7 (which is intended for the provisions benefit of Section 5.8, is the Indemnified Parties and the D&O Indemnitees) are not intended to and shall not confer upon any Person other than the parties hereto any rights rights, benefits, remedies, obligations or remedies liabilities hereunder. Each of ParentNotwithstanding the foregoing, Merger Sub(x) the Financing Sources shall be express third party beneficiaries of, and the Company hereby acknowledges and agrees thatshall be entitled to rely on, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the CompanySections 8.2(g), none of them9.1, or 9.8, 9.9, 9.10, 9.18 and this Section 9.6 and (y) neither Broadcom nor any of their respective its Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or nor any of their respective Representatives relies on shall have any rights or has been induced by claims against any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to Financing Source in connection with this Agreement, on behalf the Debt Financing or the transactions contemplated hereby or thereby, whether at law or equity, in contract, in tort or otherwise; provided, that, notwithstanding the foregoing, nothing in this Section 9.6 shall in any way limit or modify the rights and obligations of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of Avago under this Agreement or any Financing Source’s obligations to Avago under the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoingDebt Commitment Letter.

Entire Agreement; Third Party Beneficiaries. This Agreement, including the Company Disclosure Schedule, and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the partiesParties, or any of them, with respect to the subject matter hereof and thereof and (b) except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards and Company Restricted Shares to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunder, which right is hereby acknowledged and agreed by Parent and Merger Sub, and (iii) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties Parties hereto any rights or remedies hereunder. Each of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-cost related plan information) or inducements, and each of the parties Parties to this Agreement, on behalf of itself, itself and its Affiliates, Affiliates and its and their respective 57 Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoing.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, Parent Disclosure Schedule and the exhibits heretoexhibits, together with the other schedules and instruments referred to herein, including ) and the Confidentiality Agreement (a) constitute the entire agreement, agreement and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, parties with respect to the subject matter hereof and thereof and (b) are not intended to confer upon any Person other than the parties hereto and their respective successors and permitted assigns any rights or remedies hereunder, in the case of clause (b), except for (i) the rights of the Company’s shareholders and holders of Company RSUs and Company Performance Share Awards stockholders to receive the Merger Consideration and payments pursuant the holders of the Company Options, Company RSUs, Retention RSUs and Company RSAs to Article IIreceive the consideration described in Section 3.4, respectivelyas the case may be, after following the Effective Time, (ii) the right of the Company, on behalf of its shareholders, to pursue damages in the event of Parent or Merger Sub’s willful stockholders and material breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock Options, Company RSUs, Retention RSUs and Company RSAs to pursue specific performance as set forth in Section 9.11 or, if specific performance is not sought and granted as a remedy, damages (including, “which damages the parties agree may be based upon a decrease in share value or lost premium” and time value ) in the event of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunderParent’s breach of this Agreement or fraud, which right is hereby acknowledged and agreed to by Parent and Merger SubSub but which right may only be pursued subject to and in accordance with the terms and conditions of the proviso in Section 9.11(c), and (iii) as provided in Section 6.6 (which is intended for the provisions benefit of the Insured Parties and the Indemnified Parties, all of whom shall be third-party beneficiaries of Section 5.86.6), is not intended (iv) prior to the Effective Time, the rights of the holders of Company Common Stock to pursue claims for damages but only in accordance with the terms and conditions of the proviso in Section 9.11(c); provided, however, that the rights granted to the holders of Company Common Stock pursuant to the foregoing clauses (ii) and (iv) of this Section 9.6 shall not confer upon any Person other than the parties hereto any rights or remedies hereunder. Each only be enforceable on behalf of Parent, Merger Sub, and the Company hereby acknowledges and agrees that, except for the representations and warranties contained in this Agreement (as modified such holders by the Company Disclosure Schedule, in the case of the representations and warranties of the Company), none of them, (or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, successor in interest thereto) in its sole and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information absolute discretion and (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan informationv) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its Financing Sources and their respective Representativessuccessors, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information legal representatives and permitted assigns with respect to any one or more of the foregoingtheir respective rights under Section 8.2(e), Section 9.1, Section 9.6, Section 9.9, Section 9.11 and Section 9.15.

Entire Agreement; Third Party Beneficiaries. This Agreement, Agreement (including the Company Disclosure Schedule, schedules hereto) and the exhibits hereto, together with the other instruments referred to herein, including the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the partiesParties, or any of them, with respect to the subject matter hereof and thereof and (b) and, except for Article III (i) the rights of the Company’s shareholders which, from and holders of Company RSUs and Company Performance Share Awards to receive the Merger Consideration and payments pursuant to Article II, respectively, after the Effective Time, shall be for the benefit of holders of Shares, the Company Stock Options referenced in Section 3.1(b) and the Warrant), Section 7.8 (ii) which, from and after the Effective Time, shall be for the benefit of the D&O Indemnified Parties), Article IX (with respect to the Purchaser Indemnified Parties and the Seller Indemnified Parties), and the right of the Company, on behalf of its shareholdersthe holders of Shares and for AGREEMENT AND PLAN OF MERGER 65 their indirect benefit, to pursue damages (including damages based on the consideration that would otherwise have been payable to holders of the Shares or based on the loss of market value or stock price of the Company) in the event of Parent Purchaser’s or Merger Sub’s willful and material or intentional breach of this Agreement, in which event the damages recoverable by the Company for itself and on behalf of its shareholders (without duplication) shall be determined by reference to the total amount that would have been recoverable by the holders of the Company Common Stock (including, “lost premium” and time value of money) if all such holders brought an action against Parent and Merger Sub and were recognized as intended third party beneficiaries hereunderAgreement or fraud, which right is hereby acknowledged and agreed by Parent Purchaser and Merger Sub, and (iii) the provisions of Section 5.8, is not intended to and shall not confer upon any Person other than the parties Parties hereto any rights or remedies hereunder. Each To the extent there may arise a remedy in favor of Parent, the Company’s shareholders relating to the right to obtain any transaction premium or similar value arising as damages in connection with a breach of this Agreement by Purchaser or Merger Sub, such right may be exercised, and the Company hereby acknowledges damages may be sought and agrees thatobtained, except for the representations and warranties contained in this Agreement (as modified if at all, only by the Company Disclosure Schedulefor the benefit of such shareholders, and under no circumstances shall the Company be deemed to be a trustee of, or to be required to make a dividend, distribution or other payment of, any proceeds of any such Claim, it being expressly intended that any amounts so recovered may be retained or applied in the case of the representations sole and warranties absolute discretion of the Company), none ’s Board of them, or any of their respective Affiliates or Representatives, or any other Person acting on behalf of any of them, makes, and none of them or any of their respective Representatives relies on or has been induced by any other representations, warranties, information (including estimates, projections, forecasts and other forward-looking information, business plans and cost-related plan information) or inducements, and each of the parties to this Agreement, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby disclaims any other representations, warranties or inducements, express or implied, as to the accuracy or completeness of any information, made by, or made available by, itself, any of its Affiliates or any of its or their respective Representatives, with respect to, or in connection with, the negotiation, execution or delivery of this Agreement or the Transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s Representatives of any documentation or other information with respect to any one or more of the foregoingDirectors.