A WAIVER THEREOF, NOR SHALL
ANY WAIVER ON THE PART OF ANY PARTY OF ANY RIGHT, POWER OR PRIVILEGE HEREUNDER
PRECLUDE ANY OTHER OR FUTURE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE
HEREUNDER.
1.5.
HEADINGS.
THE DIVISION OF THIS AGREEMENT INTO ARTICLES, SECTIONS,
SUBSECTIONS AND PARAGRAPHS AND THE INSERTION OF HEADINGS ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION OR INTERPRETATION OF THIS
AGREEMENT.
1.6.
LAW GOVERNING THIS AGREEMENT; CONSENT TO JURISDICTION.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
WITH
RESPECT TO ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR TO THE
TRANSACTIONS CONTEMPLATED HEREBY ("PROCEEDINGS"), EACH PARTY HERETO IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE COUNTY OF NEW YORK,
STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE COUNTY OF
NEW YORK IN THE STATE OF NEW YORK.
EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY (A) WAIVES TRIAL BY JURY IN ANY PROCEEDING RELATING TO THIS
AGREEMENT AND FOR ANY RELATED COUNTERCLAIM AND (B) WAIVES ANY OBJECTION WHICH IT
MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY
SUCH COURT, WAIVES ANY CLAIM THAT SUCH PROCEEDINGS HAVE BEEN BROUGHT IN AN
INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH
PROCEEDINGS, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY.
AS
BETWEEN THE COMPANY AND THE PURCHASER, THE
2
PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ITS
REASONABLE ATTORNEYS' FEES AND COSTS.
IN THE EVENT THAT ANY PROVISION OF THIS
AGREEMENT IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID OR
UNENFORCEABLE, THEN THE REMAINDER OF THIS AGREEMENT SHALL NOT BE AFFECTED AND
SHALL REMAIN IN FULL FORCE AND EFFECT.
1.7.
CONSTRUCTION.
EACH PARTY ACKNOWLEDGES THAT ITS LEGAL COUNSEL
PARTICIPATED IN THE PREPARATION OF THIS AGREEMENT AND, THEREFORE, STIPULATES
THAT THE RULE OF CONSTRUCTION THAT AMBIGUITIES ARE TO BE RESOLVED AGAINST THE
DRAFTING PARTY SHALL NOT BE APPLIED IN THE INTERPRETATION OF THIS AGREEMENT TO
FAVOR ANY PARTY AGAINST THE OTHER.
ARTICLE II
APPOINTMENT OF AND DELIVERIES TO THE ESCROW AGENT
2.1.
APPOINTMENT.
THE COMPANY AND THE PURCHASER HEREBY IRREVOCABLY
DESIGNATE AND APPOINT THE ESCROW AGENT AS THEIR ESCROW AGENT FOR THE PURPOSES
SET FORTH HEREIN, AND THE ESCROW AGENT BY ITS EXECUTION AND DELIVERY OF THIS
AGREEMENT HEREBY ACCEPTS SUCH APPOINTMENT UNDER THE TERMS AND CONDITIONS SET
FORTH HEREIN.
2.2.
COPIES OF DOCUMENTS TO ESCROW AGENT.
ON OR ABOUT THE DATE HEREOF,
THE PURCHASER SHALL DELIVER TO THE ESCROW AGENT COPIES OF THE DOCUMENTS EXECUTED
BY THE COMPANY TO THE EXTENT IT IS A PARTY THERETO.
2.3.
DELIVERY OF ESCROWED PAYMENT TO ESCROW AGENT.
ON OR ABOUT THE
DATE HEREOF, THE PURCHASER SHALL DELIVER TO THE ESCROW AGENT THE ESCROWED
PAYMENT.
2.4.
INTENTION TO CREATE ESCROW OVER THE ESCROWED PAYMENT.
THE
PURCHASER AND THE