THAT ARISE OUT OF OR ARE BASED ON ANY
AGREEMENT OR UNDERSTANDING OR ACT OR FAILURE TO ACT (INCLUDING ANY ACT OR
FAILURE TO ACT THAT CONSTITUTES ORDINARY OR GROSS NEGLIGENCE OR RECKLESS OR
WILLFUL, WANTON MISCONDUCT), MISREPRESENTATION, OMISSION, TRANSACTION, FACT,
EVENT OR OTHER MATTER OCCURRING CONTEMPORANEOUSLY WITH OR PRIOR TO THE CLOSING
DATE OR ON ACCOUNT OF OR ARISING OUT OF ANY MATTER, CAUSE OR EVENT OCCURRING
CONTEMPORANEOUSLY WITH OR PRIOR TO THE CLOSING DATE (WHETHER BASED ON ANY
GOVERNMENTAL REQUIREMENT OR RIGHT OF ACTION, AT LAW OR IN EQUITY OR OTHERWISE,
FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, KNOWN OR UNKNOWN, ACCRUED OR NOT
ACCRUED) (COLLECTIVELY, "PRE-ACQUISITION MATTERS"), INCLUDING WITHOUT
LIMITATION: (A) CLAIMS BY A RELEASING PARTY WITH RESPECT TO REPAYMENT OF LOANS
OR INDEBTEDNESS; (B) ANY RIGHTS, TITLES AND INTERESTS IN, TO OR UNDER ANY
AGREEMENTS, ARRANGEMENTS OR UNDERSTANDINGS TO WHICH A RELEASING PARTY IS A
PARTY; AND (C) CLAIMS BY A RELEASING PARTY WITH RESPECT TO DIVIDENDS OR
VIOLATION OF PREEMPTIVE RIGHTS.
EACH RELEASING PARTY FURTHER AGREES NOT TO FILE
OR BRING ANY LITIGATION BEFORE ANY GOVERNMENTAL AUTHORITY ON THE BASIS OF OR
RESPECTING ANY PRE-ACQUISITION CLAIM CONCERNING ANY PRE-ACQUISITION MATTER
AGAINST ANY RELEASED PARTY.
EACH RELEASING PARTY (A) ACKNOWLEDGES THAT SUCH
RELEASING PARTY FULLY COMPREHENDS AND UNDERSTANDS ALL THE TERMS OF THIS SECTION
10.1 AND THEIR LEGAL EFFECTS AND (B) EXPRESSLY REPRESENTS AND WARRANTS THAT (I)
SUCH RELEASING PARTY IS COMPETENT TO EFFECT THE RELEASE MADE IN THIS SECTION
10.1 KNOWINGLY AND VOLUNTARILY AND WITHOUT RELIANCE ON ANY STATEMENT OR
REPRESENTATION OF ANY RELEASED PARTY OR ITS REPRESENTATIVES AND (II) SUCH
RELEASING PARTY HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF ITS CHOICE
REGARDING THIS SECTION 10.1.
THIS SECTION 10.1 SHALL NOT AFFECT THE RIGHTS OF
ANY RELEASING PARTY UNDER THIS AGREEMENT.
SECTION 10.2
ARBITRATION.
(A)
DISPUTES COVERED.
EXCEPT FOR MATTERS ARISING UNDER SECTION 6.5
AND SECTION 10.3, ANY DISPUTE, CONTROVERSY, DIFFERENCE OR CLAIM ARISING OUT OF
OR IN CONNECTION WITH INDEMNIFICATION OF AN BUYER INDEMNIFIED PARTY OR A SELLER
INDEMNIFIED PARTY PURSUANT TO THIS
52
AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, WHICH CANNOT BE
AMICABLY RESOLVED BY THE PARTIES WITHIN THIRTY DAYS AFTER RECEIPT BY A PARTY OF
WRITTEN NOTICE FROM ANY OTHER PARTY THAT SUCH A DISPUTE, CONTROVERSY, DIFFERENCE
OR CLAIM EXISTS, SHALL BE SETTLED BY FINAL AND BINDING ARBITRATION.
(B)
FORUM.
THE FORUM FOR THE ARBITRATION SHALL BE NEW YORK, NEW YORK.
(C)
LAW.
THE GOVERNING LAW FOR THE ARBITRATION SHALL BE THE LAW OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
(D)
SELECTION.
THE ARBITRATION SHALL BE CONDUCTED BY THREE
ARBITRATORS, UNLESS THE PARTIES ARE ABLE TO AGREE ON A SINGLE ARBITRATOR.
IN
THE ABSENCE OF SUCH AGREEMENT WITHIN TEN DAYS AFTER THE INITIATION OF AN
ARBITRATION PROCEEDING, SELLER PARTIES SHALL SELECT ONE ARBITRATOR AND BUYER
SHALL SELECT ONE ARBITRATOR, AND THOSE TWO ARBITRATORS SHALL THEN SELECT, WITHIN
TEN DAYS, A THIRD ARBITRATOR.
IF THOSE TWO ARBITRATORS ARE UNABLE TO SELECT A