THE APPLICABLE STATUTE OF LIMITATION.
5.2
ENTIRETY. THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE
SCHEDULES AND EXHIBITS REFERRED TO HEREIN, THE SHAREHOLDER NONCOMPETITION
AGREEMENT AND THE OTHER DOCUMENTS AND CERTIFICATES SPECIFICALLY IDENTIFIED
HEREIN OR CONTEMPLATED HEREBY OR DELIVERED IN CONNECTION HEREWITH, EMBODIES THE
ENTIRE AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF,
AND ALL PRIOR AGREEMENTS BETWEEN THE PARTIES WITH RESPECT THERETO ARE HEREBY
SUPERSEDED IN THEIR ENTIRETY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,
NO AMENDMENT, WAIVER, CONSENT, MODIFICATION OR TERMINATION OF ANY PROVISION OF
THIS AGREEMENT SHALL BE EFFECTIVE UNLESS SIGNED BY ALL PARTIES HERETO.
5.3
COUNTERPARTS. ANY NUMBER OF COUNTERPARTS OF THIS AGREEMENT MAY BE
EXECUTED AND EACH SUCH COUNTERPART SHALL BE DEEMED TO BE AN ORIGINAL INSTRUMENT,
BUT ALL SUCH COUNTERPARTS TOGETHER SHALL CONSTITUTE BUT ONE INSTRUMENT. THIS
AGREEMENT MAY BE EXECUTED BY FACSIMILE SIGNATURE, WHICH SIGNATURE SHALL BE
BINDING UPON THE PARTIES HERETO.
5.4
ATTORNEYS' FEES AND DISBURSEMENTS. IN THE EVENT OF ANY ACTION AT
LAW OR IN EQUITY BETWEEN THE PARTIES TO ENFORCE OR INTERPRET THIS AGREEMENT, THE
UNSUCCESSFUL PARTY TO SUCH LITIGATION SHALL PAY TO THE SUCCESSFUL PARTY ALL
COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS,
INCURRED THEREIN BY SUCH SUCCESSFUL PARTY AND, IF SUCH SUCCESSFUL PARTY SHALL
RECOVER JUDGMENT IN ANY SUCH ACTION OR PROCEEDINGS, SUCH COSTS, EXPENSES AND
ATTORNEYS' FEES AND DISBURSEMENTS MAY BE INCLUDED IN AND AS A PART OF SUCH
JUDGMENT. THE SUCCESSFUL PARTY SHALL BE THE PARTY WHO IS ENTITLED TO RECOVER HIS
COSTS OF SUIT, WHETHER OR NOT THE SUIT PROCEEDS TO FINAL JUDGMENT. IF NO COSTS
OF SUIT ARE AWARDED, THEN THE SUCCESSFUL PARTY SHALL BE DETERMINED BY THE COURT.
FOR THE PURPOSE OF THIS SECTION 5.4, THE TERM "ATTORNEYS' FEES AND
DISBURSEMENTS" SHALL INCLUDE, BUT NOT BE LIMITED TO, FEES AND DISBURSEMENTS
INCURRED IN CONNECTION WITH THE FOLLOWING: (I) CONTEMPT PROCEEDINGS;
(II) DISCOVERY; (III) ANY MOTION, PROCEEDING OR OTHER ACTIVITY OF ANY KIND OR
NATURE IN CONNECTION WITH A BANKRUPTCY PROCEEDING OR CASE ARISING OUT OF,
CONCERNING OR RELATED IN ANY WAY TO ANY PETITION UNDER TITLE 11 OF THE UNITED
STATES CODE, AS THE SAME SHALL BE IN EFFECT FROM TIME TO TIME, OR ANY SIMILAR
LAW; (IV) GARNISHMENT, LEVY, AND DEBTOR AND THIRD PARTY
14
EXAMINATIONS; AND, (V) POSTJUDGMENT MOTIONS, PROCEEDINGS OR ACTIVITY OF ANY KIND
OR NATURE, INCLUDING, BUT NOT LIMITED TO, ANY ACTIVITY TAKEN TO COLLECT OR
ENFORCE ANY JUDGMENT.
5.5
WAIVER. NO WAIVER OF ANY DEFAULT OR FAILURE OR DELAY TO EXERCISE
ANY RIGHT OR REMEDY BY A PARTY SHALL OPERATE AS A WAIVER OF ANY OTHER DEFAULT OR
OF THE SAME DEFAULT IN THE FUTURE OR AS A WAIVER OF ANY RIGHT OR REMEDY WITH
RESPECT TO THE SAME OR ANY OTHER OCCURRENCE.
5.6
NOTICES AND WAIVERS. ANY NOTICE OR WAIVER TO BE GIVEN TO ANY PARTY
HERETO SHALL BE IN WRITING AND SHALL BE DELIVERED BY COURIER, SENT BY FACSIMILE
TRANSMISSION OR FIRST CLASS REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
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