or (d) on the fifth (5th) Business Day
following it being mailed by registered or certified mail.
5.
CAPTIONS.
THE TITLES AND CAPTIONS
CONTAINED IN THIS AGREEMENT ARE INSERTED IN THIS AGREEMENT ONLY AS A MATTER OF
CONVENIENCE AND FOR REFERENCE AND IN NO WAY DEFINE, LIMIT, EXTEND OR DESCRIBE
THE SCOPE OF THIS AGREEMENT OR THE INTENT OF ANY PROVISION OF THIS AGREEMENT.
6.
CONTROLLING LAW; AMENDMENT; WAIVER.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CHOICE OF
LAW RULES.
ANY PROVISION OF THIS AGREEMENT MAY BE AMENDED OR WAIVED IF, BUT
ONLY IF, SUCH AMENDMENT OR WAIVER IS IN WRITING AND IS SIGNED, IN THE CASE OF AN
AMENDMENT, BY EACH PARTY TO THIS AGREEMENT, AND IN THE CASE OF A WAIVER, BY THE
PARTY AGAINST WHOM THE WAIVER IS TO BE EFFECTIVE.
NO FAILURE OR DELAY BY ANY
PARTY IN EXERCISING ANY RIGHT,
5
POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER THEREOF NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
EXCEPT AS
OTHERWISE PROVIDED HEREIN, THE RIGHTS AND REMEDIES HEREIN PROVIDED SHALL BE
CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS OR REMEDIES PROVIDED BY LAW.
7.
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT, OR THE APPLICATION THEREOF, IS FOR ANY REASON HELD TO ANY EXTENT TO
BE INVALID, ILLEGAL OR UNENFORCEABLE, THEN THE REMAINDER OF THIS AGREEMENT AND
THE APPLICATION THEREOF WILL NEVERTHELESS REMAIN IN FULL FORCE AND EFFECT SO
LONG AS THE ECONOMIC AND LEGAL SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT ARE NOT AFFECTED IN ANY MANNER MATERIALLY ADVERSE TO ANY PARTY
HERETO.
UPON SUCH DETERMINATION THAT ANY PROVISION IS INVALID, ILLEGAL OR
UNENFORCEABLE, THE PARTIES AGREE TO REPLACE SUCH PROVISION WITH A VALID, LEGAL
AND ENFORCEABLE PROVISION THAT WILL ACHIEVE, TO THE MAXIMUM EXTENT LEGALLY
PERMISSIBLE, THE ECONOMIC, BUSINESS AND OTHER PURPOSES OF SUCH PROVISION.
8.
COUNTERPARTS.
THIS AGREEMENT MAY BE
SIGNED IN ANY NUMBER OF COUNTERPARTS (INCLUDING BY FACSIMILE), EACH OF WHICH
SHALL BE DEEMED AN ORIGINAL, WITH THE SAME EFFECT AS IF THE SIGNATURES THERETO
AND HERETO WERE UPON THE SAME INSTRUMENT.
THIS AGREEMENT SHALL BECOME EFFECTIVE
WHEN EACH PARTY HERETO SHALL HAVE RECEIVED A COUNTERPART HEREOF SIGNED BY THE
OTHER PARTY HERETO.
9.
INTEGRATION.
THE TRANSACTION DOCUMENTS
SUPERSEDE ALL NEGOTIATIONS, AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND CONSTITUTE THE ENTIRE
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
10.
DISPUTE RESOLUTION; ATTORNEY'S FEES.
ANY
CONTROVERSY, CLAIM OR DISPUTE OF WHATEVER NATURE, INCLUDING CLAIMS FOR FRAUD IN
THE INDUCEMENT AND DISPUTES AS TO ARBITRABILITY, ARISING BETWEEN SELLER AND
PURCHASER UNDER THIS AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER SHALL BE RESOLVED IN ACCORDANCE WITH THE PROCEDURES SET
FORTH IN SECTION 11.7 OF THE PURCHASE AGREEMENT AND SUBJECT TO THE