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Chapter 23 Putting It All TogetherTina L. Stark Adjunct Professor of Law Fordham University School of Law New York, New York § 23.04 A Proposed “Gen eral Provisions” Ar ticle Page 646 Article X—GENER AL PROVISI ONS [Communications Between the Parti es and with O thers] Section X.01. No tices. (a) Requirement of a Writing; Permitted Methods of De livery. Each party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Agreement shall give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: personal delivery, Registered or Certified Mail (in each case, return receipt requested and postage prepaid), nationally recognized overnight courier (with all fees prepaid), facsimile or e- mail. (b) Addressees and Addresses. Any party giving a Notice shall address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address listed on the signature page of this Agreement or to another Addressee or another address as designated by a party in a Notice pursuant to this Section. (c) Effectiveness of a Notice. Except as provided elsewhere in this Agreement, a Notice is effective only if the party giving the Notice has complied with subsections (a) and (b) and if the Addressee has received the Notice. Section X.02. Con fidentiality. (a) Obligation to Maintain Confidentiality. Except as otherwise required by law, the party to whom disclosures are made (the “Recipient”) shall not, and shall cause each of its directors, officers, employees, agents, and representatives (collectively, the “Representatives”) not to, (i) disclose the Confidential Information (as defined in subsection (c)) to any person or entity other than the Representatives of the Recipient that (A) need to know the Confidential Information for the purposes contemplated by this Agreement; and (B) agree to be bound by the provisions of this Section; or (ii) use the Confidential Information for any purpose other than the purposes this Agreement contemplates. (b) Return of Confident ial Information. Promptly upon the written request of the Company, the Recipient shall, and shall cause its Representatives to, return to the Company or destroy all Confidential Information. If the Recipient destroys the Confidential Information, it shall certify that it has done so in writing and promptly deliver that certificate to the Company. (c) Definition of Conf idential Informa tion. (i) Definition. “Confidential Information” means (A) all information relating to the Company or its business (whether provided in writing or otherwise) that has been provided or shown to the Recipient or any of its Representatives by or on behalf of the Company or any of its Representatives; and (B) all notes, analyses, compilations, studies, and other materials containing any information described in subsection (c)(i)(A). (ii) Exceptions. The term “Confidential Information” excludes information that (A) becomes generally publicly available other than as a result of disclosure by Recipient or any of its Representatives; or (B) becomes available to the Recipient on a nonconfidential basis from a third party that is not bound by a similar duty of confidentiality. Section X.03. Announcem ents. Neither party may issue any press release or make any announcement with respect to this Agreement without the prior written consent of the other party. That party shall not unreasonably withhold or delay its consent. Despite the previous sentences of this Section, the parties (a) shall issue a joint press release in the form of Exhibit _____ immediately following the execution and delivery of this Agreement; and (b) are entitled to make any disclosures required by law. [Determining Wha t Constitutes the Con tract] Section X.04. Amend ments. The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement. Section X.05. Waiv ers. (a) No Oral Waivers. The parties may any provision in waive this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. (b) Effect of Failure, Delay or Course of Dealing. No failure or delay (i) in exercising any right or remedy, or (ii) in requiring the satisfaction of any condition, under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. (c) Each Waiver for a Specific Purpose. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other Person. Page 649 Section X.06. Severabilit y. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable. Section X.07. Merger. This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of the other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than those expressly stated in this Agreement. Section X.08. Counterparts. The parties may execute this Agreement in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. The signatures of all of the parties need not appear on the same counterpart, and delivery of an executed counterpart signature page by facsimile is as effective as executing and delivering this Agreement in the presence of the other parties to this Agreement. This Agreement is effective upon delivery of one executed counterpart from each party to the other parties. In proving this Agreement, a party must produce or account only for the executed counterpart of the party to be charged. [Financial and Ri sk Allocation Prov isions] Section X.09. Indemnification. Party A shall indemnify and defend Party B at all times after the date of this Agreement against (a) any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, other than any Litigation Expenses (as defined in subsection (b)), arising out of or relating to [insert transaction specific information]; and (b) any court filing fee, court cost, arbitration fee or cost, witness fee, and each other fee and cost of investigating and defending or asserting any claim for indemnification under this Agreement, including, without limitation, in each case, attorneys’ fees, other professionals’ fees, and disbursements (collectively, “Litigation Expenses”). Section X.10. Force Maj eure Event. [Insert the follo wing definitions into the de finitions article.] “Force Majeure Event” means any act or event, whether foreseen or unforeseen, that meets all three of the following tests: (a) The act or event prevents a party (the “Nonperforming Party”), in whole or in part, from (i) performing its obligations under this Agreement; or(ii) satisfying any conditions to the obligations of the other party (the “Performing Party”) under this Agreement. (b) The act or event is beyond the reasonable control of and not the fault of the Nonperforming Party. (c) The Nonperforming Party has been unable to avoid or overcome the act or event by the exercise of due diligence. Despite the preceding definition of a Force Majeure Event, a Force Majeure Event excludes economic hardship, changes in market conditions, and insufficiency of funds. “Nonperforming Party” has the meaning assigned in the definition of Force Majeure Event. “Performing Party” has the meaning assigned in the definition of Force Majeure Event. The following are the subsections of the Force Majeure Event Section: (a) Suspension of Performan ce. If a Force Majeure Event occurs, the Nonperforming Party is excused from (i) whatever performance is prevented by the Force Majeure Event to the extent prevented; and (ii) satisfying whatever conditions precedent to the Performing Party’s obligations that cannot be satisfied, to the extent they cannot be satisfied. Despite the preceding sentence, a Force Majeure Event does not excuse any obligation by either the Performing Party or the Nonperforming Party to make any payment required under this Agreement. (b) Resumption of Performan ce. When the Nonperforming Party is able to (i) resume performance of its obligations under this Agreement, or (ii) satisfy the conditions precedent to the Performing Party’s obligations, it shall immediately give the Performing Party written notice to that effect and shall resume performance under this Agreement no later than two working days after the notice is delivered. (c) Exclusive Remedy. The relief offered by this Force Majeure provision is the exclusive remedy available to the Nonperforming Party with respect to a Force Majeure Event. Section X.11. Transac tion Costs. Except as expressly provided in this Agreement, each party shall pay its own fees and expenses (including, without limitation, the fees and expenses of its agents, representatives, attorneys, and accountants) incurred in connection with the negotiation, drafting, execution, delivery, and performance of this Agreement and the transactions it contemplates. [Parties, Assigne es, and Third Party Beneficiaries ] Section X.12. Assign ment and D elegation. (a) No Assignments. No party may assign any of its rights under this Agreement, except with the prior written consent of the other party. That party shall not unreasonably withhold its consent. All assignments of rights are prohibited under this subsection, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner. For purposes of this Section, (i) a “change of control” is deemed an assignment of rights; and (ii) “merger” refers to any merger in which a party participates, regardless of whether it is the surviving or disappearing corporation. (b) No Delegations. No party may delegate any performance under this Agreement. (c) Ramifications of Purported Assignment or Delegation. Any purported assignment of rights or delegation of performance in violation of this Section is void. Section X.13. Succe ssors and Assign s. (a) The Nonassigning Party’ s Performance Obligations. If there is an assignment of rights, the nonassigning party is deemed to have agreed to perform in favor of the assignee. (b) The Assignee’s Performan ce Obligations. If there is an assignment of rights, (i) a contemporaneous delegation is deemed to have occurred, and (ii) the assignee is deemed to have assumed the assignor’s performance obligations in favor of the nonassigning party, except if in either instance there is evidence to the contrary. (c) Assignability of Rights and Delegability of Perfor mance. This Section does not address, directly or indirectly, whether (i) rights under this Agreement are assignable; or (ii) performance under this Agreement is delegable. Section [insert cross-reference to the assignment and delegation provision] addresses these matters. (d) Definitions. For purposes of this Section, (i) “assignment” means any assignment, whether voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner; (ii) “assignee” means any successor or assign of the assignor; (iii) a “change of control” is deemed an assignment of rights; and (iv) “merger” refers to any merger in which a party participates, regardless of whether it is the surviving or disappearing corporation. Section X.14. Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any Person other than the signatories. [Interpretive Provi sions] Section X.15. Number and Gender. Any reference in this Agreement to the singular includes the plural where appropriate, and any reference in this Agreement to the masculine gender includes the feminine and neuter genders where appropriate. Section X.16. Captions. The descriptive headings of the Articles, Sections and subsections of this Agreement are for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation. [Further Assuranc es] Section X.17. Further Assurances. Each party and its officers and directors shall use all commercially reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this Agreement contemplates. After the Closing Date, each party and its officers and directors shall use all commercially reasonable efforts to take, or cause to be taken, all further actions necessary or desirable to carry out the purposes of this Agreement. [Dispute Resolu tion Provi sions] Section X.18. Governin g Law. The laws of the State of ____________ (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement.9 Section X.19. Forum S election. (a) Designation of Forum. Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement may bring the legal action or proceeding in the United States District Court for the [insert District location] District of [insert state name] or in any court of the State of [insert state name] sitting in [insertcity name]. (b) Waiver of Right to Contest Jurisdiction. Each party waives, to the fullest extent permitted by law, (i) any objection that it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any court of the State of [insert state name] sitting in [insert city name], or the United States District Court for the [insert District location] District of [insert state name]; and (ii) any claim that any action or proceeding brought in any court specified in subsection (b)(i) has been brought in an inconvenient forum. (c) Submission to Jurisdict ion. Each party to this Agreement submits to the nonexclusive jurisdiction of (i) the United States District Court for the [insert District location] District of [insert state name] and its appellate courts, and (ii) any court of the State of [insert state name] sitting in [insert city name] and its appellate courts, for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. (d) Appointment of th e Process Agent. Party A irrevocably (i) appoints [insert name of process agent] (the “Process Agent”) as its agent to receive service on behalf of Party A and its property; and (ii) authorizes and directs the Process Agent to accept service on its behalf. Party A shall pay all costs and expenses of the Process Agent in connection with its service as Process Agent with respect to this Agreement. (e) Service Upon the Process Agent. If process is to be served pursuant to subsection (d), Party B shall serve that process by mailing or delivering a copy of the process in care of the Process Agent at [insert address of Process Agent] or any other address as to which the Process Agent has given notice to Party B. (f) Alternative Methods of Service of Process. Nothing set forth in subsection (d) or subsection (e) affects the right to serve process in any other manner permitted by law. Section X.20. Arbitration. All controversies and claims arising under or relating to this Agreement are to be resolved by arbitration in accordance with the rules of the American Arbitration Association before a panel of three arbitrators selected in accordance with those rules. The arbitration is to be conducted in ________________. The arbitrators are to apply ___________ law, without regard to its conflict of laws principles. Each party shall submit to any court of competent jurisdiction for purposes of enforcing any award, order or judgment. Any award, order or judgment pursuant to the arbitration is final and may be entered and enforced in any court of competent jurisdiction. [Section X.21—Al ternative A] Section X.21. Rights and Remedies Cum ulative. Any enumeration of Party A’s rights and remedies set forth in this Agreement is not intended to be exhaustive. Party A’s exercise of any right or remedy under this Agreement does not preclude the exercise of any other right or remedy. All of Party A’s rights and remedies are cumulative and are in addition to any other right or remedy set forth in this Agreement, any other agreement between the parties, or which may now or subsequently exist at law or in equity, by statute or otherwise. [Section X.21—Al ternative B] Section X.21. Exclusive Remedy. The rights and remedies described in Section ____ are the exclusive remedy of either party against the other arising out of or relating to this Agreement, except (a) in the case of fraud, in which case the injured party has all rights and remedies available at law or in equity or by statute or otherwise; and (b) for the additional remedies specifically enumerated in Sections ______ and _______. Section X.22. Waiver of Jury Trial. Each party knowingly, voluntarily, and intentionally waives its right to a trial by jury to the extent permitted by law in any action or other legal proceeding arising out of or relating to this Agree ment and the transactions it contemplates. This waiver applies to any actio n or other legal proceeding , w hether sounding in contract, tort or otherwise. Each party ackno wledges that it has received the advice of compet ent counsel.