MAIL, BY EACH PARTY HERETO OF A SIGNED SIGNATURE PAGE HEREOF TO THE
OTHER PARTY.
10.9
GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(A)
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF DELAWARE 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 DELAWARE TO THE RIGHTS
AND DUTIES OF THE PARTIES.
(B)
EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY CONSENTS AND SUBMITS
TO THE JURISDICTION OF EACH STATE AND FEDERAL COURT LOCATED IN WILMINGTON,
DELAWARE (AND EACH APPELLATE COURT WHEREVER LOCATED WITH JURISDICTION OVER
APPEALS FROM SUCH COURT) FOR ANY ACTION OR OTHER 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 ACTION OR OTHER 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 ACTION OR PROCEEDING
IN ANY MANNER PERMITTED BY THE LAWS OF THE STATE OF DELAWARE, AND ALSO AGREES
THAT SERVICE OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, AT ITS ADDRESS SPECIFIED PURSUANT TO SECTION 10.6 IS SUFFICIENT AND
REASONABLY CALCULATED TO GIVE ACTUAL NOTICE;
(II)
AGREES THAT EACH STATE AND FEDERAL COURT LOCATED IN WILMINGTON,
DELAWARE 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 ACTION OR PROCEEDING COMMENCED IN ANY STATE OR
FEDERAL COURT LOCATED IN WILMINGTON, DELAWARE, ANY CLAIM THAT SUCH PARTY IS 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.
(C)
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
57
PROPRIETY OF VENUE OF PROCEEDINGS BEFORE ANY STATE OR FEDERAL COURT LOCATED IN
WILMINGTON, DELAWARE.
(D)
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 CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS