AND ITS PROPERTY, TO THE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF
DELAWARE AND ANY APPELLATE COURT THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RELATING THERETO, AND EACH OF THE
PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY (I) AGREES NOT TO COMMENCE ANY
SUCH ACTION EXCEPT IN SUCH COURT, (II) AGREES THAT ANY CLAIM IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH COURT,
(III) WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO VENUE OF ANY SUCH ACTION OR
PROCEEDING IN SUCH COURT, AND (IV) WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN SUCH COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10(A) OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN
THIS AGREEMENT SHALL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(E)
WAIVER OF JURY TRIAL.
EACH OF THE PARTIES
HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
EACH OF
THE PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD
5
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER HERETO HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND THE MERGER, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(E).
(F)
COUNTERPARTS; FACSIMILE.
FOR THE
CONVENIENCE OF THE PARTIES HERETO, THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF SEPARATE COUNTERPARTS, EACH SUCH COUNTERPART BEING DEEMED TO BE AN ORIGINAL
INSTRUMENT, AND ALL SUCH COUNTERPARTS WILL TOGETHER CONSTITUTE THE SAME
AGREEMENT.
EXECUTED SIGNATURE PAGES TO THIS AGREEMENT MAY BE DELIVERED BY
FACSIMILE AND SUCH FACSIMILES WILL BE DEEMED AS SUFFICIENT AS IF ACTUAL
SIGNATURE PAGES HAD BEEN DELIVERED.
(G)
TITLES AND SUBTITLES.
THE TITLES AND
SUBTITLES USED IN THIS AGREEMENT ARE USED FOR CONVENIENCE ONLY AND ARE NOT TO BE
CONSIDERED IN CONSTRUING OR INTERPRETING THIS AGREEMENT.
(H)
AMENDMENT.
THIS AGREEMENT MAY NOT BE
AMENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY EACH OF THE PARTIES HERETO.
(I)
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT OR THE