AS PROVIDED FOR IN THIS AGREEMENT, IN
ADDITION TO ANY OTHER REMEDY TO WHICH SUCH PARTY MAY BE ENTITLED, AT LAW OR IN
EQUITY.
66
SECTION 11.12.2
DISPUTE RESOLUTION.
EXCEPT AS OTHERWISE PROVIDED IN SECTION
11.12.1, ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
INTERPRETATION, MAKING PERFORMANCE, BREACH OR TERMINATION THEREOF, SHALL BE
FINALLY AND EXCLUSIVELY SETTLED BY BINDING ARBITRATION TO BE HELD IN NEW YORK,
NEW YORK.
THE ARBITRATION SHALL BE MADE IN ACCORDANCE WITH THE THEN CURRENT
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND SUCH
ARBITRATION SHALL BE CONDUCTED BY AN ARBITRATOR CHOSEN BY MUTUAL AGREEMENT OF
PARENT AND THE STOCKHOLDER REPRESENTATIVE; FAILING SUCH AGREEMENT, THE
ARBITRATION SHALL BE CONDUCTED, BY THREE INDEPENDENT ARBITRATORS, ONE CHOSEN BY
PARENT, ONE CHOSEN BY THE STOCKHOLDER REPRESENTATIVE, AND SUCH TWO ARBITRATORS
SHALL MUTUALLY SELECT A THIRD ARBITRATOR, WITH ANY DECISION OF TWO SUCH
ARBITRATORS SHALL BE BINDING.
THE ARBITRATOR SHALL HAVE THE AUTHORITY TO GRANT
ANY EQUITABLE AND LEGAL REMEDIES THAT WOULD BE AVAILABLE IN ANY JUDICIAL
PROCEEDING INSTITUTED IN NEW YORK, NEW YORK TO RESOLVE THE DISPUTE.
JUDGMENT
UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION THEREOF.
EACH PARTY SHALL PAY ITS OWN COSTS AND EXPENSES
(INCLUDING COUNSEL FEES) OF ANY SUCH ARBITRATION, PROVIDED THAT THE PREVAILING
PARTY SHALL BE ENTITLED TO RECOVER ITS REASONABLE COSTS AND EXPENSES (INCLUDING
COUNSEL FEES) IN CONNECTION WITH SUCH ARBITRATION.
THE PARTIES EXPRESSLY WAIVE
ALL RIGHTS WHATSOEVER TO FILE AN APPEAL AGAINST OR OTHERWISE TO CHALLENGE ANY
AWARD BY THE ARBITRATOR(S) HEREUNDER, PROVIDED THAT THE FOREGOING SHALL NOT
LIMIT THE RIGHTS OF EITHER PARTY TO BRING A PROCEEDING IN ANY APPLICABLE
JURISDICTION TO CONFORM, ENFORCE OR ENTER JUDGMENT UPON SUCH AWARD (AND THE
RIGHTS OF THE OTHER PARTY, IF SUCH PROCEEDING IS BROUGHT, TO CONTEST SUCH
CONFIRMATION, ENFORCEMENT OR ENTRY OF JUDGMENT).
Section 11.13
Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.13.
Section 11.14
Counterparts.
This Agreement may be executed in one or more
counterparts, and by the different Parties in separate counterparts, each of
which when executed shall be deemed