EQUITY.
10.7
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE REGARDLESS OF THE LAW THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
10.8
RULES OF CONSTRUCTION.
THE PARTIES HERETO AGREE THAT THEY HAVE
BEEN REPRESENTED BY COUNSEL DURING THE NEGOTIATION AND EXECUTION OF THIS
AGREEMENT AND, THEREFORE, WAIVE THE APPLICATION OF ANY LAW, REGULATION, HOLDING
OR RULE OF CONSTRUCTION PROVIDING THAT AMBIGUITIES IN AN AGREEMENT OR OTHER
DOCUMENT WILL BE CONSTRUED AGAINST THE PARTY DRAFTING SUCH AGREEMENT OR
DOCUMENT.
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10.9
ASSIGNMENT.
NO PARTY MAY ASSIGN EITHER THIS AGREEMENT OR ANY OF
ITS RIGHTS, INTERESTS, OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN
APPROVAL OF THE OTHER PARTIES.
SUBJECT TO THE FIRST SENTENCE OF THIS SECTION
10.9, THIS AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
10.10
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED BY THE PARTIES HERETO AT
ANY TIME BY EXECUTION OF AN INSTRUMENT IN WRITING SIGNED ON BEHALF OF EACH OF
THE PARTIES.
10.11
EXTENSION; WAIVER.
AT ANY TIME PRIOR TO THE CLOSING, ANY PARTY
HERETO MAY, TO THE EXTENT LEGALLY ALLOWED, (I) EXTEND THE TIME FOR THE
PERFORMANCE OF ANY OF THE OBLIGATIONS OR OTHER ACTS OF THE OTHER PARTIES HERETO,
(II) WAIVE ANY INACCURACIES IN THE REPRESENTATIONS AND WARRANTIES MADE TO SUCH
PARTY CONTAINED HEREIN OR IN ANY DOCUMENT DELIVERED PURSUANT HERETO AND (III)
WAIVE COMPLIANCE WITH ANY OF THE AGREEMENTS OR CONDITIONS FOR THE BENEFIT OF
SUCH PARTY CONTAINED HEREIN.
ANY AGREEMENT ON THE PART OF A PARTY HERETO TO ANY
SUCH EXTENSION OR WAIVER SHALL BE VALID ONLY IF SET FORTH IN AN INSTRUMENT IN
WRITING SIGNED ON BEHALF OF SUCH PARTY.
DELAY IN EXERCISING ANY RIGHT UNDER
THIS AGREEMENT SHALL NOT CONSTITUTE A WAIVER OF SUCH RIGHT.
10.12
DISPUTE RESOLUTION.
(A)
IN THE EVENT OF A DISPUTE HEREUNDER OR RELATING TO THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING UNDER OR WITH RESPECT TO ANY OF THE
AGREEMENTS TO BE EXECUTED AND DELIVERED PURSUANT HERETO, ARBITRATION WILL BE THE
SOLE AND EXCLUSIVE METHOD OF RESOLVING THE DISPUTE, EXCEPT THAT A PARTY MAY SEEK
A PRELIMINARY INJUNCTION, TEMPORARY RESTRAINING ORDER, OR OTHER PRELIMINARY
JUDICIAL RELIEF IF, IN ITS JUDGMENT, THE ACTION IS NECESSARY TO AVOID
IRREPARABLE DAMAGE OR HARM.
(B)
THE ARBITRATOR WILL CONSIST OF ANY PERSON WHO IS MUTUALLY
ACCEPTABLE TO THE PARTIES TO THE DISPUTE.
HOWEVER, IF THE PARTIES ARE UNABLE TO
AGREE ON A SINGLE ARBITRATOR, AN ARBITRATION PANEL OF THREE ARBITRATORS WILL BE
SELECTED AS PROVIDED BELOW.
EACH PARTY (PARENT AND MERGER SUB, ON THE ONE HAND,
AND COMPANY AND THE FORMER STOCKHOLDERS THROUGH THE REPRESENTATIVE, ON THE OTHER
HAND), SHALL SELECT ONE ARBITRATOR, WITHIN 10 DAYS FROM THE DATE ONE PARTY
ADVISES THE OTHER PARTY THAT IT CANNOT AGREE ON A SINGLE ARBITRATOR, AND THE
THIRD ARBITRATOR SHALL BE SELECTED BY THE TWO CHOSEN BY THE PARTIES WITHIN 10
DAYS OF SUCH