Regulation D
under the Securities Act and (b) is a transferee of at least 250,000 Shares as
permitted under the securities laws of the United States). Upon any transfer
permitted by this Section 10.9, the Company shall be obligated to such
transferee to perform all of its covenants under this Agreement as if such
transferee were an Investor.
10.10
Expenses. Each of the Company and the Investor shall
bear its respective legal, accounting, advisory and other fees, and all other
out-of-pocket expenses in connection with the preparation and negotiation of
this Agreement; provided, however, that if the Closing occurs, the Company shall
reimburse the Investor for its legal and advisory fees actually incurred up to a
maximum aggregate amount of fifty thousand dollars ($50,000).
27
10.11
Arbitration.
(A)
THE PARTIES HERETO AGREE THAT ANY DISPUTE,
CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR BREACH
THEREOF ("DISPUTE"), SHALL BE SUBJECT TO A MANDATORY PERIOD OF THIRTY (30) DAYS
DURING WHICH THE PARTIES SHALL (I) EACH APPOINT A REPRESENTATIVE (EACH A
"REPRESENTATIVE" AND COLLECTIVELY, THE "REPRESENTATIVES") AND (II) THE
REPRESENTATIVES SHALL MEET IN A TIMELY MANNER FOR THE PURPOSE OF ATTEMPTING TO
RESOLVE THE DISPUTE. THE REPRESENTATIVES SHALL NEGOTIATE IN GOOD FAITH TO
RESOLVE THE DISPUTE WITHOUT RESORT TO FORMAL PROCEEDINGS. DURING THE COURSE OF
SUCH NEGOTIATIONS, THE PARTIES SHALL COMPLY WITH ALL REASONABLE REQUESTS FOR
ACCESS TO RELEVANT INFORMATION. FORMAL PROCEEDINGS FOR THE ARBITRATION OF SUCH
DISPUTE MAY NOT BE COMMENCED UNTIL THE EXPIRATION OF THE FOREGOING MANDATORY
THIRTY- (30)-DAY PERIOD. BOTH PARTIES SHALL CONTINUE TO PERFORM THEIR RESPECTIVE
OBLIGATIONS HEREUNDER DURING THE NEGOTIATIONS BY REPRESENTATIVES ATTEMPTING TO
RESOLVE THE DISPUTE.
(B)
FOLLOWING THE EXPIRATION OF THE MANDATORY
THIRTY- (30)-DAY PERIOD PROVIDED IN SECTION 10.11(A) HEREOF, ANY UNRESOLVED
DISPUTE SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION
ASSOCIATION ("AAA") UNDER ITS COMMERCIAL DISPUTE RESOLUTION PROCEDURES, AND
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF.
(C)
THE PARTIES AGREE TO THE ARBITRATION OF THE
DISPUTE BY A SINGLE ARBITRATOR APPOINTED IN ACCORDANCE WITH THE RULES AND
PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION.
(D)
THE PARTIES AGREE TO APPROPRIATE DISCOVERY,
INCLUDING DEPOSITIONS, UNDER THE JURISDICTION OF THE ARBITRATOR. THE
ARBITRATOR'S DECISION IN SUCH MATTERS SHALL BE FINAL AND BINDING ON THE PARTIES.
(E)
THE PARTIES AGREE THAT THE ARBITRATOR
MAY GRANT ANY REMEDY OR RELIEF THAT THE ARBITRATOR DEEMS JUST AND EQUITABLE
WITHIN THE SCOPE OF THE AGREEMENT BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED
TO THE AWARD OF COMPENSATORY DAMAGES AND ORDERING THE SPECIFIC PERFORMANCE OF
THE CONTRACT, BUT NOT INCLUDING THE AWARD OF EXEMPLARY OR PUNITIVE DAMAGES.
(F)
THE PARTIES HEREBY AGREE THAT,
NOTWITHSTANDING THE FACT THAT APPLICABLE LAW MAY NOT PROVIDE FOR THE AWARD OF
ATTORNEYS' FEES AND COSTS AND/OR OTHERWISE GRANT THE ARBITRATOR THE DISCRETION
TO AWARD SUCH FEES AND COSTS, PURSUANT TO THIS AGREEMENT, THE ARBITRATOR MAY, IN
HIS OR HER REASONABLE DISCRETION, AWARD PAYMENT OF ATTORNEYS' FEES AND COSTS BY
A