EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE (WHETHER OF NEW YORK OR ANY OTHER
JURISDICTION) THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS
AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.
(B)
WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES HERETO IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. THE COMPANY OR
ANY HOLDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION 4.9(B) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHTS TO TRIAL BY JURY.
(C)
JURISDICTION.
EACH OF THE PARTIES HERETO (I) CONSENTS TO SUBMIT
ITSELF TO THE PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
LOCATED IN THE COUNTY AND CITY OF NEW YORK IN THE EVENT ANY DISPUTE ARISES OUT
OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
(II) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL
JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM SUCH COURT, (III) AGREES
THAT IT WILL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN ANY COURT OTHER THAN THE COURTS
OF THE STATE OF NEW YORK LOCATED IN THE COUNTY AND CITY OF NEW YORK AND (IV) TO
THE FULLEST EXTENT PERMITTED BY LAW, CONSENTS TO SERVICE BEING MADE THROUGH THE
NOTICE PROCEDURES SET FORTH IN SECTION 4.4.
EACH PARTY HERETO HEREBY AGREES
THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICE OF ANY PROCESS, SUMMONS,
NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO THE RESPECTIVE ADDRESSES SET FORTH
IN SECTION 4.4 SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT OR PROCEEDING
IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
26
4.10.
INTERPRETATION; CONSTRUCTION.
(A)
THE TABLE OF CONTENTS AND HEADINGS HEREIN ARE FOR CONVENIENCE OF
REFERENCE ONLY, DO NOT CONSTITUTE PART OF THIS AGREEMENT AND SHALL NOT BE DEEMED
TO LIMIT OR OTHERWISE AFFECT ANY OF THE PROVISIONS HEREOF.
WHERE A REFERENCE IN
THIS AGREEMENT IS MADE TO A SECTION, SUCH REFERENCE SHALL BE TO A SECTION OF
THIS AGREEMENT UNLESS OTHERWISE INDICATED.
WHENEVER THE WORDS "INCLUDE,"
"INCLUDES" OR "INCLUDING" ARE USED IN THIS AGREEMENT, THEY SHALL BE DEEMED TO BE
FOLLOWED BY THE WORDS "WITHOUT LIMITATION."
(B)
THE PARTIES HAVE PARTICIPATED JOINTLY IN NEGOTIATING AND DRAFTING
THIS AGREEMENT.
IN THE EVENT THAT AN AMBIGUITY OR A QUESTION OF INTENT OR
INTERPRETATION ARISES, THIS AGREEMENT SHALL BE CONSTRUED AS IF DRAFTED JOINTLY
BY THE PARTIES, AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR
DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY PROVISION OF THIS
AGREEMENT.
4.11.
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
SEPARATE COUNTERPARTS EACH OF WHICH WHEN SO EXECUTED SHALL BE