OPERATE AS 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
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.
2
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