MATERIALS, FIXTURES AND
EQUIPMENT THEREOF) OR OTHERWISE WITH RESPECT TO THE COMPLIANCE OF THE BUSINESS
OR THE MOUNTAIN VIEW FACILITIES WITH ANY ENVIRONMENTAL LAW, AND THE TRANSACTIONS
CONTEMPLATED HEREBY.
NONE OF THE PARTIES, NOR ANY OF THEIR RELATED PERSONS, MAY
BRING ANY ACTION OR PROCEEDING, AT LAW, EQUITY OR OTHERWISE, AGAINST THE OTHER
PARTY OR ITS RELATED PERSONS, IN RESPECT OF ANY BREACHES OR ALLEGED BREACHES OF
ANY REPRESENTATION, WARRANTY OR OTHER PROVISION OF THIS AGREEMENT OR ANY
HAZARDOUS MATERIAL PRESENT ON, IN, OR ABOUT THE MOUNTAIN VIEW FACILITIES
(INCLUDING, WITHOUT LIMITATION THE SOIL, GROUNDWATER, BUILDING MATERIALS,
FIXTURES AND EQUIPMENT THEREOF) OR OTHERWISE WITH RESPECT TO THE COMPLIANCE OF
THE BUSINESS OR THE MOUNTAIN VIEW FACILITIES WITH ANY ENVIRONMENTAL LAW, EXCEPT
PURSUANT TO THE EXPRESS PROVISIONS OF THIS ARTICLE VIII.
EACH PARTY HEREBY
ACKNOWLEDGES THAT THE OTHER PARTY HAS MADE NO REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE MATTERS CONTEMPLATED
HEREBY, EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT AND THE ANCILLARY
AGREEMENTS.
THE PARTIES FURTHER AGREE THAT THE FOREGOING WAIVERS SHOULD NOT BE
DIMINISHED BY THE OPERATION OF ANY LAW TO THE EFFECT THAT WAIVERS OF UNKNOWN
CLAIMS ARE NOT ENFORCEABLE AND, ACCORDINGLY, THE PARTIES, AFTER CONSULTATION
WITH COUNSEL, EACH WAIVES THE BENEFITS OF ALL SUCH LAWS, INCLUDING WITHOUT
LIMITATION, SECTION 1542 OF THE CALIFORNIA CIVIL CODE.
8.7
ARBITRATION OF DISPUTES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, ANY CLAIMS, DISPUTES OR CONTROVERSIES ARISING OUT
OF OR RELATING TO ARTICLE VIII, INCLUDING ANY DISPUTE CONCERNING THE
ARBITRABILITY OR THE SCOPE OF THIS ARBITRATION CLAUSE, SHALL BE EXCLUSIVELY
SETTLED BY BINDING ARBITRATION PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN
ARBITRATION ASSOCIATION ("AAA") (IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT
ANY SUCH CLAIMS, DISPUTES AND REMEDIES SHALL BE SUBJECT TO THE PROVISIONS OF
ARTICLE VIII).
ARBITRATION MAY BE COMMENCED BY ANY PARTY HERETO IN CLEVELAND,
OHIO BY GIVING WRITTEN NOTICE TO AAA IN SUCH PLACE, AND TO EACH OTHER PARTY,
THAT SUCH CLAIM OR DISPUTE HAS BEEN REFERRED TO ARBITRATION UNDER THIS SECTION
8.7.
THE ARBITRATION PROCEEDINGS SHALL BE CONDUCTED, USING DELAWARE LAW, AND
APPLICABLE FEDERAL LAW, BEFORE A SINGLE NEUTRAL ARBITRATOR (OR, IN THE CASE OF A
CLAIM EXCEEDING $1,000,000, BEFORE A PANEL OF THREE (3) NEUTRAL ARBITRATORS,
WITH EACH PARTY SELECTING ONE ARBITRATOR AND THE TWO SELECTED BY THE PARTIES
SELECTING THE THIRD), EACH OF WHOM SHALL HAVE EXPERIENCE WITH MERGERS AND
ACQUISITIONS.
ANY AWARD RENDERED BY THE ARBITRATOR(S) SHALL BE CONCLUSIVE,
FINAL AND BINDING UPON THE PARTIES HERETO, AND NONAPPEALABLE TO ANY COURT OR
FORUM; PROVIDED, HOWEVER, THAT ANY SUCH AWARD SHALL BE ACCOMPANIED BY A CONCISE
WRITTEN OPINION GIVING THE REASONS FOR THE AWARD.
JUDGMENT UPON SUCH AWARD MAY
BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
EACH
26
PARTY SHALL PAY ITS OWN EXPENSES OF ARBITRATION, EXCEPT THAT THE COSTS AND
EXPENSES OF THE ARBITRATORS AND THE ARBITRATION PROCEEDING SHALL BE PAID BASED
ON THE RESOLUTION OF THE DISPUTED ITEMS AND THE RELATIVE DEGREE OF SUCCESS