OTHER ACTION NECESSARY IN ORDER TO
EXECUTE, DELIVER AND PERFORM THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY, (II) THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY
IT AND CONSTITUTES A VALID AND BINDING AGREEMENT OF IT ENFORCEABLE IN ACCORDANCE
WITH THE TERMS HEREOF.
3.3.
GOVERNING LAW.
3.3.1
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF NEW YORK TO THE RIGHTS
AND DUTIES OF THE PARTIES.
3.3.2
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO
SUBMIT TO THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IF SUCH COURT DOES NOT HAVE
JURISDICTION, THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY (THE "NEW YORK COURTS") FOR ANY LEGAL ACTION OR OTHER LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR
PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED THEREBY (AND
AGREES NOT TO COMMENCE ANY LEGAL ACTION OR OTHER LEGAL PROCEEDING RELATING
THERETO EXCEPT IN SUCH COURTS), INCLUDING TO ENFORCE ANY SETTLEMENT, ORDER OR
AWARD.
EACH PARTY HERETO:
(I)
CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING IN ANY
MANNER PERMITTED BY THE LAWS OF THE STATE OF NEW YORK, AND AGREES THAT SERVICE
OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS
ADDRESS SPECIFIED PURSUANT TO SECTION 3.1 IS REASONABLY CALCULATED TO GIVE
ACTUAL NOTICE;
(II)
AGREES THAT THE NEW YORK COURTS SHALL BE DEEMED TO BE A
CONVENIENT FORUM; AND
(III)
WAIVES AND AGREES NOT TO ASSERT (BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE), IN ANY SUCH LEGAL PROCEEDING COMMENCED IN THE NEW YORK COURTS
THAT SUCH PARTY IS
20
NOT SUBJECT PERSONALLY TO THE JURISDICTION OF SUCH COURT, THAT SUCH LEGAL
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF SUCH
PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR
THEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT.
3.3.3
IN THE EVENT OF ANY ACTION OR OTHER PROCEEDING RELATING TO THIS
AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT, THE PREVAILING
PARTY (AS DETERMINED BY THE COURT) SHALL BE ENTITLED TO PAYMENT BY THE
NON-PREVAILING PARTY OF ALL COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
FEES) INCURRED BY THE PREVAILING PARTY, INCLUDING ANY COSTS AND EXPENSES
INCURRED IN CONNECTION WITH ANY CHALLENGE TO THE JURISDICTION OR THE CONVENIENCE
OR PROPRIETY OF VENUE OF PROCEEDINGS BEFORE THE NEW YORK COURTS.
3.3.4
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 LEGAL ACTION OR OTHER LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN