NEUTRAL ARBITRATOR
UNLESS THE PARTIES AGREE OTHERWISE.
THE PARTIES AGREE TO SEEK TO REACH
AGREEMENT ON THE IDENTITY OF THE ARBITRATOR WITHIN THIRTY (30) DAYS AFTER THE
INITIATION OF ARBITRATION.
IF THE PARTIES ARE UNABLE TO REACH AGREEMENT ON THE
IDENTITY OF THE ARBITRATOR WITHIN SUCH TIME, THEN THE APPOINTMENT OF THE
ARBITRATOR SHALL BE MADE IN ACCORDANCE WITH THE PROCESS SET FORTH IN JAMS
COMPREHENSIVE RULE 15.
15
(D)
THE ARBITRATION AWARD SHALL BE IN WRITING, STATE THE REASONS FOR
THE AWARD, AND BE FINAL AND BINDING ON THE PARTIES.
THE ARBITRATOR MAY, IN THE
AWARD, ALLOCATE ALL OR PART OF THE COSTS OF THE ARBITRATION, INCLUDING THE FEES
OF THE ARBITRATOR AND THE ATTORNEYS' FEES OF THE PREVAILING PARTY.
JUDGMENT ON
THE AWARD MAY BE ENTERED BY ANY COURT HAVING JURISDICTION THEREOF OR HAVING
JURISDICTION OVER THE RELEVANT PARTY OR ITS ASSETS.
NOTWITHSTANDING APPLICABLE
STATE LAW, THE ARBITRATION AND THIS AGREEMENT TO ARBITRATE SHALL BE GOVERNED BY
THE FEDERAL ARBITRATION ACT, 9 U.S.C. § 1, ET SEQ.
(E)
THE PARTIES AGREE THAT THE ARBITRATION SHALL BE KEPT CONFIDENTIAL
AND THAT THE EXISTENCE OF THE PROCEEDING AND ANY ELEMENT OF IT (INCLUDING BUT
NOT LIMITED TO ANY PLEADINGS, BRIEFS OR OTHER DOCUMENTS SUBMITTED OR EXCHANGED,
ANY TESTIMONY OR OTHER ORAL SUBMISSIONS, AND ANY AWARDS) SHALL NOT BE DISCLOSED
BEYOND THE TRIBUNAL, JAMS, THE PARTIES, THEIR COUNSEL, ACCOUNTANTS AND AUDITORS,
INSURERS AND RE-INSURERS, AND ANY PERSON NECESSARY TO THE CONDUCT OF THE
PROCEEDING.
THE CONFIDENTIALITY OBLIGATIONS SHALL NOT APPLY (I) IF DISCLOSURE
IS REQUIRED BY LAW, OR IN JUDICIAL OR ADMINISTRATIVE PROCEEDINGS, OR (II) AS FAR
AS DISCLOSURE IS NECESSARY TO ENFORCE THE RIGHTS ARISING OUT OF THE AWARD.
8.
GOVERNING LAW; JURISDICTION, WAIVER OF JURY TRIAL.
THIS
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION
AND EFFECT, BY THE LAW OF THE STATE OF NEW YORK, REGARDLESS OF THE LAW THAT
MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT SUCH
PRINCIPLES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
9.
SEVERABILITY.
IF ANY PROVISION OR PROVISIONS OF THIS AGREEMENT
SHALL BE HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE, THE VALIDITY, LEGALITY
AND ENFORCEABILITY OF THE REMAINING PROVISIONS HEREOF SHALL NOT IN ANY WAY BE
AFFECTED OR IMPAIRED THEREBY.
10.
SUCCESSORS; BINDING EFFECT.
EACH INDEMNIFYING PARTY WILL REQUIRE
ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION,
REORGANIZATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND
ASSETS OF SUCH INDEMNIFYING PARTY, BY AGREEMENT IN FORM AND SUBSTANCE
SATISFACTORY TO THE INVESTOR AND ITS COUNSEL, EXPRESSLY TO ASSUME AND AGREE TO
PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT THAT SUCH
INDEMNIFYING PARTY WOULD BE REQUIRED TO PERFORM IF NO SUCH SUCCESSION HAD TAKEN
PLACE.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF EACH
PARTY HERETO AND ITS SUCCESSORS AND PERMITTED ASSIGNS, AND EACH OTHER
INDEMNITEE, BUT NEITHER THIS AGREEMENT NOR ANY RIGHT, INTEREST OR OBLIGATION
HEREUNDER SHALL