BE AN INDEPENDENT EXPERT AS DESCRIBED IN THE PRECEDING SENTENCE
SELECTED BY THE CHIEF EXECUTIVE OF THE DENVER OFFICE OF THE AMERICAN ARBITRATION
ASSOCIATION.
EACH PARTY SHALL PREPARE A WRITTEN REPORT SETTING FORTH ITS
POSITION WITH RESPECT TO THE SUBSTANCE OF THE DISPUTE.
THE ARBITRATOR SHALL
SELECT ONE OF THE PARTY'S POSITIONS AS HIS DECISION, AND SHALL NOT HAVE
AUTHORITY TO RENDER ANY SUBSTANTIVE DECISION OTHER THAN TO SO SELECT THE
POSITION OF EITHER AZ OR ARRAY.
THE COSTS OF SUCH ARBITRATION SHALL BE SHARED
EQUALLY BY THE PARTIES, AND EACH PARTY SHALL BEAR ITS OWN EXPENSES IN CONNECTION
WITH SUCH ARBITRATION.
ANY SUCH ARBITRATION SHALL BE COMMENCED WITHIN
THIRTY (30) DAYS FOLLOWING A REQUEST BY EITHER PARTY FOR SUCH ARBITRATION.
12.3
JURISDICTION AND GOVERNING LAW.
SUBJECT TO
SECTION 12.2, THIS AGREEMENT AND ANY DISPUTE ARISING FROM THE PERFORMANCE OR
BREACH HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, U.S.A. WITHOUT REFERENCE TO CONFLICTS OF LAWS
PRINCIPLES AND THE PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK.
49
12.4
ASSIGNMENT.
12.4.1
GENERAL.
THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY
EITHER PARTY TO ANY THIRD PARTY HERETO WITHOUT THE WRITTEN CONSENT OF THE OTHER
PARTY HERETO; EXCEPT EITHER PARTY MAY ASSIGN THIS AGREEMENT, WITHOUT SUCH
CONSENT, TO AN AFFILIATE OR TO AN ENTITY THAT ACQUIRES ALL OR SUBSTANTIALLY ALL
OF THE BUSINESS OR ASSETS OF SUCH PARTY TO WHICH THIS AGREEMENT PERTAINS
(WHETHER BY MERGER, REORGANIZATION, ACQUISITION, SALE OR OTHERWISE), AND AGREES
IN WRITING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IT IS
UNDERSTOOD THAT THE PROVISIONS OF SECTIONS 12.4.2 AND 12.4.3 SHALL APPLY IN THE
EVENT OF ASSIGNMENT OF THIS AGREEMENT UNDER THE CIRCUMSTANCES DESCRIBED
THEREIN.
NOTWITHSTANDING THE FOREGOING, IF ANY PERMITTED ASSIGNMENT TO AN
AFFILIATE OF AZ WOULD RESULT IN ADDITIONAL WITHHOLDING TAXES BECOMING DUE ON
PAYMENTS TO ARRAY UNDER THIS AGREEMENT, THEN THE PARTIES SHALL NEGOTIATE IN GOOD
FAITH TERMS AND CONDITIONS UNDER WHICH SUCH ASSIGNMENT WOULD OCCUR.
NO
ASSIGNMENT AND TRANSFER SHALL BE VALID AND EFFECTIVE UNLESS AND UNTIL THE
ASSIGNEE/TRANSFEREE SHALL AGREE IN WRITING TO BE BOUND BY THE PROVISIONS OF THIS
AGREEMENT.
THE TERMS AND CONDITIONS SHALL BE BINDING ON AND INURE TO THE
BENEFIT OF THE PERMITTED SUCCESSORS AND ASSIGNS OF THE PARTIES.
12.4.2
CERTAIN ADDITIONAL MATTERS ON CHANGE OF CONTROL OF AZ.
IN THE EVENT (I) AZ ASSIGNS THIS AGREEMENT TO AN ENTITY THAT ACQUIRES ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF AZ, OR (II) AZ MERGES OR
CONSOLIDATES OR ENTERS INTO A SIMILAR TRANSACTION WITH AN ENTITY IN WHICH SUCH
ENTITY BECOMES AN AFFILIATE OF AZ (EACH SUCH EVENT, A "SUBJECT TRANSACTION"),
AND, AS A RESULT OF THE SUBJECT TRANSACTION, AZ (OR ITS SUCCESSOR) IS THEREAFTER
REQUIRED TO [ * ] ONE OR MORE LICENSED PRODUCTS TO A THIRD PARTY, AZ (OR ITS
SUCCESSOR) SHALL SO NOTIFY ARRAY AND [ * ].
ARRAY SHALL