OR SIMILAR PROCESS, EXCEPT TO THE LIMITED EXTENT NECESSARY TO
(I) AVOID EXPIRATION OF A CLAIM THAT MIGHT EVENTUALLY BE PERMITTED BY THIS
AGREEMENT OR (II) OBTAIN INTERIM RELIEF, INCLUDING INJUNCTIVE RELIEF, TO
PRESERVE THE STATUS QUO OR PREVENT IRREPARABLE HARM.
(B)
ANY PARTY SEEKING RESOLUTION OF A DISPUTE SHALL FIRST SUBMIT THE
DISPUTE FOR RESOLUTION BY MEDIATION PURSUANT TO THE CENTER OF PUBLIC RESOURCES
MODEL PROCEDURE FOR MEDIATION OF BUSINESS DISPUTES AS THEN IN EFFECT.
MEDIATION
WILL CONTINUE FOR AT LEAST 60 DAYS UNLESS THE MEDIATOR CHOOSES TO WITHDRAW
SOONER.
(C)
ALL OFFERS OF COMPROMISE OR SETTLEMENT AMONG THE PARTIES OR THEIR
REPRESENTATIVES IN CONNECTION WITH THE ATTEMPTED RESOLUTION OF ANY DISPUTE SHALL
BE DEEMED TO HAVE BEEN DELIVERED IN FURTHERANCE OF A DISPUTE SETTLEMENT AND
SHALL BE EXEMPT FROM DISCOVERY AND PRODUCTION AND SHALL NOT BE ADMISSIBLE IN
EVIDENCE (WHETHER AS AN ADMISSION OR OTHERWISE) IN ANY PROCEEDING FOR THE
RESOLUTION OF THE DISPUTE.
(D)
ACQUIRER AND THE SELLERS AGREE THAT IF ANY DISPUTE IS NOT RESOLVED
BY MEDIATION UNDERTAKEN PURSUANT TO THIS SECTION 9.10, SUCH DISPUTE SHALL BE
RESOLVED ONLY IN THE COURTS OF THE STATE OF DELAWARE SITTING IN THE COUNTY OF
NEW CASTLE OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND
THE APPELLATE COURTS HAVING JURISDICTION OF APPEALS IN SUCH COURTS.
(E)
UNLESS OTHERWISE REQUIRED BY LAW (INCLUDING, WITHOUT LIMITATION,
SECURITIES LAWS) OR THE RULES AND REGULATIONS OF THE NEW YORK STOCK EXCHANGE,
THE PARTIES TO THIS AGREEMENT UNDERTAKE AND AGREE THAT ALL MEDIATION PROCEEDINGS
CONDUCTED WITH REFERENCE TO THIS SECTION 9.10 WILL BE KEPT STRICTLY
CONFIDENTIAL.
THIS CONFIDENTIALITY UNDERTAKING SHALL COVER ALL NON-PUBLIC
INFORMATION DISCLOSED IN THE COURSE OF SUCH PROCEEDINGS, AS WELL AS ANY
AGREEMENT
48
THAT IS REACHED DURING THE PROCEEDINGS.
SUBJECT TO THE LIMITATIONS DESCRIBED IN
THIS SECTION 9.10(E), INFORMATION COVERED BY THE CONFIDENTIALITY UNDERTAKING IN
THIS SECTION 9.10(E) MAY NOT, IN ANY FORM, BE DISCLOSED BY ANY PARTY TO A THIRD
PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES HERETO.
SECTION 9.11
HEADINGS.
THE TABLE OF CONTENTS AND HEADINGS CONTAINED
IN THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY AND SHALL NOT AFFECT IN ANY
WAY THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
SECTION 9.12
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH WILL BE DEEMED AN ORIGINAL, BUT ALL OF
WHICH TOGETHER WILL CONSTITUTE ONE AND THE SAME INSTRUMENT.
SECTION 9.13
SPECIFIC PERFORMANCE.
EACH PARTY ACKNOWLEDGES AND AGREES
THAT THE BREACH OF THIS AGREEMENT WOULD CAUSE IRREPARABLE DAMAGE TO THE OTHER
PARTIES HERETO AND THAT NO PARTY WILL HAVE AN ADEQUATE REMEDY AT LAW.
THEREFORE, THE OBLIGATIONS OF EACH PARTY UNDER THIS AGREEMENT SHALL BE
ENFORCEABLE BY A DECREE OF SPECIFIC PERFORMANCE ISSUED BY ANY COURT OF COMPETENT
JURISDICTION, AND APPROPRIATE INJUNCTIVE RELIEF MAY BE APPLIED FOR AND GRANTED
IN CONNECTION THEREWITH, INCLUDING TO PREVENT BREACHES OF THIS AGREEMENT, AND
THIS RIGHT SHALL INCLUDE THE RIGHT OF THE PARTIES TO CAUSE THE TRANSACTIONS
CONTEMPLATED HEREBY TO BE