REPRESENTATIONS, ORAL OR OTHERWISE,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER HEREOF HAVE BEEN MADE BY
EITHER PARTY WHICH ARE NOT SET FORTH EXPRESSLY IN THIS AGREEMENT.
THE VALIDITY,
INTERPRETATION CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF, AND ANY APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF
AMERICA.
NO TERMS, CONDITIONS, WARRANTIES, OTHER THAN THOSE CONTAINED HEREIN,
AND NO AMENDMENTS OR MODIFICATIONS HERETO SHALL BE BINDING UNLESS MADE IN
WRITING AND SIGNED BY THE PARTIES HERETO.
NO PROVISIONS OF THIS AGREEMENT MAY
BE MODIFIED, WAIVED OR DISCHARGED UNLESS SUCH WAIVER, MODIFICATION OR DISCHARGE
IS AGREED TO IN WRITING AND SIGNED BY EXECUTIVE AND THE CHIEF EXECUTIVE OFFICER
OF THE COMPANY OR SUCH EXECUTIVE OF THE
16
COMPANY AS MAY BE SPECIFICALLY DESIGNATED BY THE CHIEF EXECUTIVE OFFICER OF THE
COMPANY.
NO WAIVER BY EITHER PARTY HERETO AT ANY TIME OF ANY BREACH BY THE
OTHER PARTY HERETO OF, OR COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS
AGREEMENT TO BE PERFORMED BY SUCH OTHER PARTY SHALL BE DEEMED A WAIVER OF
SIMILAR OR DISSIMILAR PROVISIONS OR CONDITIONS AT THE SAME OR AT ANY PRIOR OR
SUBSEQUENT TIME.
18.
BINDING EFFECT.
THIS AGREEMENT SHALL EXTEND TO AND BE BINDING UPON AND INURE TO THE BENEFIT OF
THE PARTIES HERETO, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS; PROVIDED, HOWEVER,
THAT NEITHER PARTY SHALL HAVE THE RIGHT TO ASSIGN, TRANSFER OR CONVEY THIS
AGREEMENT.
19.
TITLES.
TITLES OF THE HEADINGS HEREIN ARE USED SOLELY FOR CONVENIENCE AND SHALL NOT BE
USED FOR INTERPRETATION OR CONSTRUING ANY WORD, SECTION, CLAUSE, PARAGRAPH, OR
PROVISION OF THIS AGREEMENT.
20.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, AND BY DIFFERENT
PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
AGREEMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE TO THIS
AGREEMENT BY TELECOPIER SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED
COUNTERPART OF THIS AGREEMENT.
21.
ENFORCEMENT.
THE PROVISIONS OF THIS AGREEMENT MAY BE ENFORCED BY ALL LEGAL AND EQUITABLE
REMEDIES AVAILABLE TO THE PARTIES INCLUDING SPECIFIC PERFORMANCE AND
INJUNCTION.
NOTHING HEREIN SHALL BE CONSTRUED AS PROHIBITING EITHER PARTY FROM
PURSUING ANY OTHER REMEDIES AVAILABLE TO IT, INCLUDING RECOVERY OF DAMAGES.
22.
CERTAIN DEFINITIONS.
"AFFILIATES" HAS THE MEANING SET FORTH IN RULE 12B-2 OF THE SECURITIES EXCHANGE
ACT OF 1934, AS AMENDED.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
"SECURITIES EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
AND THE RULES AND REGULATION PROMULGATED THEREUNDER.
23.
CONSTRUCTION.
EACH OF THE PARTIES HAS
AGREED TO THE USE OF THE PARTICULAR LANGUAGE OF THE PROVISIONS OF THIS AGREEMENT
AND ALL ATTACHED EXHIBITS, AND ANY QUESTIONS OF DOUBTFUL INTERPRETATION SHALL
NOT BE RESOLVED SOLELY BY ANY RULE OR INTERPRETATION AGAINST THE DRAFTSMAN BUT
RATHER IN ACCORDANCE WITH THE FAIR MEANING