IF SENT BY
REPUTABLE, OVERNIGHT COURIER SERVICE; AT THE
16
TIME RECEIVED, IF SENT BY REGISTERED OR CERTIFIED MAIL; AND AT THE TIME WHEN
CONFIRMATION OF SUCCESSFUL TRANSMISSION IS RECEIVED BY THE SENDING FACSIMILE
MACHINE, IF SENT BY FACSIMILE.
SECTION 10.5
ASSIGNMENT; THIRD PARTY BENEFICIARIES.
EXCEPT IN
CONNECTION WITH A TRANSFER OF SHARES PERMITTED BY THIS AGREEMENT, NEITHER THIS
AGREEMENT NOR ANY OF THE RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER SHALL BE
ASSIGNED BY ANY OF THE PARTIES HERETO (WHETHER BY OPERATION OF LAW OR OTHERWISE)
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES.
SUBJECT TO THE
FOREGOING, THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF EACH
OF THE SHAREHOLDERS AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND ASSIGNS.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NOTHING IN
THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED OR SHALL BE CONSTRUED TO CONFER
UPON OR GIVE TO ANY PERSON, OTHER THAN THE PARTIES TO THIS AGREEMENT AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, OR OTHER PERSONS WHO BECOME BOUND BY THE
TERMS OF THIS AGREEMENT, ANY RIGHTS OR REMEDIES UNDER OR BY REASON OF THIS
AGREEMENT.
SECTION 10.6
AMENDMENT; WAIVER.
THIS AGREEMENT MAY BE AMENDED,
MODIFIED, WAIVED OR ALTERED ONLY IN A WRITING SIGNED BY THE PARTIES HERETO.
THE
FAILURE OF A PARTY TO INSIST UPON THE PERFORMANCE OF ANY PROVISION HEREOF SHALL
NOT CONSTITUTE A WAIVER OF, OR ESTOPPEL AGAINST, ASSERTION OF THE RIGHT TO
REQUIRE SUCH PERFORMANCE, NOR SHALL A WAIVER OR ESTOPPEL IN ONE CASE OR INSTANCE
IMPLY A WAIVER OR ESTOPPEL WITH RESPECT TO ANY OTHER CASE OR INSTANCE, WHETHER
OF SIMILAR NATURE OR OTHERWISE.
SECTION 10.7
DESCRIPTIVE HEADINGS.
THE DESCRIPTIVE HEADINGS OF THIS
AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY AND SHALL NOT CONSTITUTE A PART OF
THIS AGREEMENT.
SECTION 10.8
EXPENSES.
EACH PARTY SHALL BEAR ITS OWN COSTS AND
EXPENSES IN CONNECTION WITH THE NEGOTIATION, EXECUTION AND PERFORMANCE OF THIS
AGREEMENT.
SECTION 10.9
SEVERABILITY.
IF ANY TERM OR OTHER PROVISION OF THIS
AGREEMENT IS INVALID, ILLEGAL OR INCAPABLE OF BEING ENFORCED BY ANY RULE OF
APPLICABLE LAW OR PUBLIC POLICY, ALL OTHER CONDITIONS AND 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 ANY PARTY.
UPON SUCH DETERMINATION
THAT ANY TERM OR OTHER PROVISION IS INVALID, ILLEGAL OR INCAPABLE OF BEING
ENFORCED, THE PARTIES HERETO 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 TRANSACTIONS CONTEMPLATED
HEREBY ARE FULFILLED TO THE EXTENT POSSIBLE.
SECTION 10.10
FURTHER ASSURANCES.
THE PARTIES AGREE TO COOPERATE FULLY
IN THE EXECUTION, ACKNOWLEDGMENT AND DELIVERY OF ALL INSTRUMENTS, AGREEMENTS AND
OTHER PAPERS AND TO TAKE SUCH OTHER ACTIONS AS MAY BE NECESSARY TO FURTHER CARRY
OUT AND FULLY ACCOMPLISH THE INTENT AND PURPOSES OF THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY AMENDMENT OF