FAX: (801) 204-2892
With a copy to (which shall not constitute notice):
Craig Johnson, Esq.
Rio Tinto Services Inc.
224 North 2200 West
Salt Lake City, Utah 84116
(801) 238-2400
Fax: (801) 238-2473
or to such other addresses or telecopy numbers as may be specified by like
notice to the other Parties.
5.6.
SURVIVAL.
THE COVENANTS AND OTHER
AGREEMENTS CONTAINED IN THIS AGREEMENT, AND LIABILITY FOR THE BREACH OF ANY
OBLIGATIONS CONTAINED HEREIN, SHALL SURVIVE EACH OF THE ACQUISITION CLOSING, THE
OVERALLOTMENT ACQUISITION CLOSING AND THE TRANSACTIONS AND SHALL REMAIN IN FULL
FORCE AND EFFECT.
8
5.7.
NO THIRD-PARTY BENEFICIARIES.
THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF, AND BE BINDING UPON, THE PARTIES HERETO
AND THEIR RESPECTIVE LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
NOTHING IN
THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY OTHER PERSON
ANY RIGHTS OR REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS
AGREEMENT.
5.8.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED
ONLY BY A WRITTEN AGREEMENT EXECUTED BY THE PARTIES HERETO.
5.9.
WAIVER.
A PROVISION OF THIS AGREEMENT MAY
BE WAIVED ONLY BY A WRITING SIGNED BY THE PARTY INTENDED TO BE BOUND BY THE
WAIVER. A PARTY IS NOT PREVENTED FROM ENFORCING ANY RIGHT, REMEDY OR CONDITION
IN THE PARTY'S FAVOR BECAUSE OF ANY FAILURE OR DELAY IN EXERCISING ANY RIGHT OR
REMEDY OR IN REQUIRING SATISFACTION OF ANY CONDITION, EXCEPT TO THE EXTENT THAT
THE PARTY SPECIFICALLY WAIVES THE SAME IN WRITING.
A WRITTEN WAIVER GIVEN FOR
ONE MATTER OR OCCASION IS EFFECTIVE ONLY IN THAT INSTANCE AND ONLY FOR THE
PURPOSE STATED.
A WAIVER ONCE GIVEN IS NOT TO BE CONSTRUED AS A WAIVER FOR ANY
OTHER MATTER OR OCCASION.
ANY ENUMERATION OF A PARTY'S RIGHTS AND REMEDIES IN
THIS AGREEMENT IS NOT INTENDED TO BE EXCLUSIVE, AND A PARTY'S RIGHTS AND
REMEDIES ARE INTENDED TO BE CUMULATIVE TO THE EXTENT PERMITTED BY LAW AND
INCLUDE ANY RIGHTS AND REMEDIES AUTHORIZED IN LAW OR IN EQUITY.
5.10.
SEVERABILITY.
IF ANY TERM OR OTHER PROVISION
OF THIS AGREEMENT SHALL BE DETERMINED BY A COURT, ADMINISTRATIVE AGENCY OR
ARBITRATOR TO BE INVALID, ILLEGAL OR UNENFORCEABLE, SUCH INVALIDITY, ILLEGALITY
OR UNENFORCEABILITY SHALL NOT RENDER THE ENTIRE AGREEMENT INVALID. RATHER, THIS
AGREEMENT SHALL BE CONSTRUED AS IF NOT CONTAINING THE PARTICULAR INVALID,
ILLEGAL OR UNENFORCEABLE PROVISION, AND ALL OTHER PROVISIONS OF THIS AGREEMENT
SHALL NEVERTHELESS REMAIN IN FULL FORCE AND EFFECT SO LONG AS THE ECONOMIC OR
LEGAL SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY IS NOT AFFECTED IN ANY
MANNER MATERIALLY ADVERSE TO EITHER PARTY. UPON SUCH DETERMINATION THAT ANY TERM
OR OTHER PROVISION IS INVALID, ILLEGAL OR UNENFORCEABLE, THE PARTIES SHALL
NEGOTIATE IN GOOD FAITH TO MODIFY THIS AGREEMENT SO AS TO EFFECT THE ORIGINAL
INTENT OF THE PARTIES AS CLOSELY AS POSSIBLE IN AN ACCEPTABLE MANNER TO THE END
THAT THE TRANSACTIONS CONTEMPLATED HEREBY ARE FULFILLED TO THE FULLEST EXTENT
PERMITTED UNDER APPLICABLE LAW.
5.11.
COUNTERPARTS AND SIGNATURE.
THIS AGREEMENT MAY
BE EXECUTED IN SEPARATE COUNTERPARTS, EACH OF WHICH