in the manner provided
for notices in Section 10.8 of the Purchase Agreement. Nothing in this Agreement
will affect the right of any party to serve process in any other manner
permitted by law.
(h) Severability. If any provision, including any phrase, sentence, clause,
section or subsection, of this Agreement is invalid, inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering such provision invalid, inoperative or unenforceable in any other case
or circumstance, or of rendering any other provision herein contained invalid,
inoperative or unenforceable to any extent whatsoever and a suitable and
equitable provision shall be substituted for any such invalid, inoperative or
unenforceable provision in order to carry out, so far as may be valid or
enforceable, such provision.
(i) No Third Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any Person that is not a party hereto or a successor or
permitted assignee of a party hereto.
(j) Interpretation. The parties hereto have participated jointly in the
negotiating and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation shall arise, this Agreement shall be
construed as if drafted jointly and no presumption or burden of proof shall
arise favoring or disfavoring any party hereto by virtue of the authorship of
any provisions of this Agreement.
7. Certain Waivers.
(a) THE PARTIES TO THIS AGREEMENT EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO
RECOVER PUNITIVE, EXEMPLARY, LOST PROFITS, CONSEQUENTIAL, SPECIAL, INDIRECT OR
SIMILAR DAMAGES IN ANY ARBITRATION, LAWSUIT, LITIGATION OR PROCEEDING ARISING
OUT OF OR RESULTING FROM ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EVEN IF ADVISED OF THE
POSSIBILITY OR LIKELIHOOD OF THE SAME.
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(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY OR CLAIM
WHICH MAY ARISE OUT OF OR RELATE TO THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE EITHER OF THE FOREGOING WAIVERS, (ii) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO ANY OF THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
PHELPS DODGE CORPORATION
By
Name:
Title:
PHELPS DODGE INDUSTRIES, INC.
By
Name:
Title:
REA MAGNET WIRE COMPANY, INC.
By
Name:
Title:
EXHIBIT E
[FORM OF INTELLECTUAL PROPERTY