confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or
(C) provided by a courier or overnight courier service shall be rebuttable
evidence of personal service, receipt by facsimile or deposit with a nationally
recognized
19
overnight delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.
Notwithstanding the foregoing, the Company or its counsel may
transmit versions of any Registration Statement (or any amendments or
supplements thereto) to Legal Counsel in satisfaction of its obligations under
Section 4(c) to permit Legal Counsel to review such Registration Statement prior
to filing (and solely for such purpose) by email to such e-mail address as has
been provided for such purpose by Legal Counsel, provided that delivery and
receipt of such transmission shall be confirmed by electronic, telephonic or
other means.
C.
FAILURE OF ANY PARTY TO EXERCISE ANY
RIGHT OR REMEDY UNDER THIS AGREEMENT OR OTHERWISE, OR DELAY BY A PARTY IN
EXERCISING SUCH RIGHT OR REMEDY, SHALL NOT OPERATE AS A WAIVER THEREOF.
D.
ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTIONS) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTIONS OTHER THAN THE STATE OF DELAWARE. EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS SITTING THE STATE OF DELAWARE, FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY
OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN
ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO
THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR
PROCEEDING IS IMPROPER.
EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE
OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, OR BY DEPOSIT WITH A NATIONALLY RECOGNIZED OVERNIGHT DELIVERY
SERVICE, TO SUCH PARTY AT THE ADDRESS FOR SUCH NOTICES TO IT UNDER THIS
AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF.
NOTHING CONTAINED HEREIN SHALL BE DEEMED
TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
IF ANY PROVISION OF THIS AGREEMENT SHALL BE INVALID OR UNENFORCEABLE IN ANY
JURISDICTION, SUCH INVALIDITY OR UNENFORCEABILITY SHALL NOT AFFECT THE VALIDITY
OR ENFORCEABILITY OF THE REMAINDER OF THIS AGREEMENT IN THAT JURISDICTION OR THE
VALIDITY OR ENFORCEABILITY OF ANY PROVISION OF