Common use of Governing Law; Consent to Jurisdiction; Arbitration Clause in Contracts

Governing Law; Consent to Jurisdiction; Arbitration. This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by, and construed and interpreted in accordance with, the laws of the State of New Jersey, without giving effect to the choice of law provisions thereof. Any unresolved controversy or claim arising out of or relating to this Agreement, except (i) as otherwise provided in this Agreement or (ii) with respect to which a party seeks injunctive or other equitable relief, shall be submitted to arbitration by one arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). Judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. The parties agree that the arbitrator in any such matter shall be directed to award reasonable attorneys’ fees to the prevailing party. The arbitrator shall also be directed to award the arbitrator’s compensation charges and the administrative fees of the AAA to the prevailing party. The parties knowingly and voluntarily agree to this arbitration provision and acknowledge that arbitration shall be instead of any civil litigation, meaning that the parties each are waiving any rights to a jury trial. Each of the parties to this Agreement consents to personal jurisdiction and venue for any equitable action sought in the United States District Court for the District of New Jersey and any state court of competent jurisdiction in the State of New Jersey that is located in Passaic County (and in the appropriate appellate courts from any of the foregoing). Notwithstanding the foregoing, the Executive and the Employer agree that, prior to submitting a dispute under this Agreement to arbitration, the parties shall submit, for a period of sixty (60) days, to voluntary mediation before a jointly selected neutral third party mediator under the auspices of JAMS, New York City, New York, Resolution Center (or any successor location), pursuant to the procedures of JAMS International Mediation Rules conducted in the State of New York (however, such mediation or obligation to mediate shall not suspend or otherwise delay any termination or other action of the Employer or affect any other right of the Employer).

Governing Law; Consent to Jurisdiction; Arbitration. (a) This Agreement, Agreement and all matters arising directly or indirectly from this Agreement, the Transaction Documents and the rights and obligations of the Parties hereunder and thereunder shall be governed by, and construed and interpreted in accordance with, the laws internal Laws of the State of New JerseyYork, without giving effect to the choice conflict of law provisions laws principles thereof, except to the extent that the transactions under Article III are governed by the Virginia Act. Each of the Parties hereby irrevocably submits to the exclusive jurisdiction of any Federal or state court sitting in the City of New York over any Proceeding arising out of or relating to this Agreement and the Transaction Documents; provided, that equitable relief sought by any Party may be sought in any court having appropriate jurisdiction. Each of the Parties hereby irrevocably waives, to the fullest extent permitted or not prohibited by applicable Laws, any objection which such Party may now or hereafter have to the laying of the venue of any such Proceeding brought in such a court and any claim that any such Proceeding brought in such a court has been brought in an inconvenient forum. Each of the Parties hereby irrevocably consents to the service of process in any Proceeding by sending the same by certified mail, return receipt requested or by overnight courier service, to the address of such Party set forth in Section 12.1. Any unresolved pre-trial depositions of Bxxxxxx Shareholders, and any pre-trial inspection of documents of Bxxxxxx and Bxxxxxx Shareholders which pre-date the Closing Date, in connection with any Proceeding arising out of or relating to this Agreement or the Transaction Documents shall be conducted in Roanoke, Virginia or Winston-Salem, North Carolina, unless the Parties otherwise agree; however, the Parties shall cooperate in furnishing via mail or courier any documents to which any Party is entitled by law or legal process. EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION BROUGHT HEREUNDER OR ARISING OUT OF THE TRANSACTION AND THE TRANSACTION DOCUMENTS. (b) At the election of any Party prior to the commencement of any Proceeding pursuant to Section 12.5(a), any controversy or claim arising out of or relating to this Agreement, except (i) as otherwise provided in this Agreement or (ii) with respect to which a party seeks injunctive or other equitable reliefthe breach thereof, shall be submitted to finally settled by binding arbitration by one arbitrator pursuant to in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) before one neutral arbitrator (the “Arbitrator”) selected by agreement of H&E, on the one hand, and Bxxxxxx Shareholders Representative on the other, not later than ten (10) business days after delivery of a Party’s election for arbitration hereunder, failing such agreement, appointed from the New York or Virginia statewide panel of full-time neutral arbitrators of the American Arbitration Association, and pursuant to the commercial arbitration rules of the American Arbitration Association (including the supplementary procedures for large complex disputes), as amended from time to time (the “AAA Rules”). Judgment If an arbitrator so selected becomes unable to serve, his or her successor shall be similarly selected or appointed. Arbitration shall be held in such location as the Parties shall agree after consideration of the availability of acceptable arbitrators or such other site as is mutually agreed, with a preference given to Roanoke, Virginia. The award of the arbitrators shall be final and enforceable, and judgment upon any award rendered in such arbitration will be binding and thereby may be entered in any court having jurisdiction thereof. The parties agree that the arbitrator in any jurisdiction, or application may be made to such matter shall be directed to award reasonable attorneys’ fees to the prevailing party. The arbitrator shall also be directed to award the arbitrator’s compensation charges and the administrative fees court for a judicial acceptance of the AAA to award and an Order of enforcement, as the prevailing party. The parties knowingly and voluntarily agree to this arbitration provision and acknowledge that arbitration shall be instead of any civil litigation, meaning that the parties each are waiving any rights to a jury trial. Each of the parties to this Agreement consents to personal jurisdiction and venue for any equitable action sought in the United States District Court for the District of New Jersey and any state court of competent jurisdiction in the State of New Jersey that is located in Passaic County (and in the appropriate appellate courts from any of the foregoing)case may be. Notwithstanding the foregoing, the Executive provisions of this Section 12.5(b) shall be inapplicable to (i) matters which are to be decided by the Accountants or the Arbitrator Accountants in accordance with the express terms of this Agreement, or (ii) any action for equitable relief (including any Proceeding seeking specific performance and the Employer agree that, prior to submitting any Proceeding seeking injunctive relief (whether a dispute under this Agreement to arbitration, the parties shall submit, for temporary restraining order or a period of sixty (60) days, to voluntary mediation before a jointly selected neutral third party mediator under the auspices of JAMS, New York City, New York, Resolution Center (preliminary or any successor locationpermanent injunction), including pursuant to Section 12.12 or to enforce the procedures provisions of JAMS International Mediation Rules conducted Section 8.8 or the Non-Competition Agreements, in which case all ancillary and related claims and causes of action shall also be subject to the State provisions of New York this clause (however, such mediation or obligation to mediate shall not suspend or otherwise delay any termination or other action of the Employer or affect any other right of the Employerii).

Governing Law; Consent to Jurisdiction; Arbitration. (a) This Agreement, Agreement and all matters claims and causes of action arising directly or indirectly from this Agreement, in connection herewith shall be governed by, and construed and interpreted in accordance with, the laws Laws of the State of New JerseyDelaware, without giving effect regard to the choice conflict of law provisions thereof. Any unresolved controversy or claim laws principles that would result in the application of any Law other than the Laws of the State of Delaware. (b) The parties hereto hereby agree that in order to obtain prompt and expeditious resolution of all disputes arising out of or relating to this Agreement, including the existence, validity, interpretation or performance of this Agreement or the transactions contemplated by this Agreement (including, for the avoidance of doubt, any claim arising out of or related to the parties’ relationship, rights, duties and obligations hereunder, whether based on contract, tort or statute, and the substantive or procedural arbitrability of any claim hereunder), all such disputes shall be exclusively resolved by final and binding arbitration under the Delaware Rapid Arbitration Act (the “DRAA”, 10 Del. C. § 5801 et seq.) and the Delaware Rapid Arbitration Rules promulgated thereunder by the Supreme Court of the State of Delaware (“Rules”) in effect at the time of the date of delivery of the notice of arbitration, except as modified herein. (i) The arbitral panel shall consist of three arbitrators (the “Tribunal”). The situs of the arbitration shall be the State of Delaware, although the evidentiary and other proceedings shall be conducted in New York (Manhattan), New York. The Tribunal may conduct proceedings in other locations if necessary for the taking of evidence. The language of the arbitration proceedings, and of the arbitral award, shall be the English language. The parties hereto agree that (A) the claimant(s) and respondent(s) shall each appoint one arbitrator within twenty (20) days of the date of delivery of the notice of arbitration; and (B) the two party-appointed arbitrators shall appoint the third arbitrator, who shall serve as otherwise the chair of the Tribunal, within twenty (20) days from the date of the appointment of the second arbitrator. Each member of the Tribunal must be a former judge of the Delaware Supreme Court and/or Delaware Court of Chancery; provided, that in the event a former Delaware judge is unavailable to serve as arbitrator for one or more of the positions on the Tribunal, then the parties hereto shall submit a petition for the appointment of one or more arbitrators (as needed to complete the three-member Tribunal) to the Court of Chancery of the State of Delaware under Section 5805 of the DRAA. Any arbitrator not timely appointed as provided in clause (A) or (B) of this Agreement Section 8.13(b)(i) shall be appointed by the Delaware Court of Chancery in accordance with Section 5805 of the DRAA. In the event that the Tribunal retains counsel in consultation with the parties hereto under Section 5806 of the DRAA, then such counsel shall be impartial and shall be knowledgeable about and experienced with the practice of law and have had at least fifteen (15) years of legal experience in the area of mergers and acquisitions or complex commercial transactions. Only the Court of Chancery of the State of Delaware shall have the power and authority to appoint a new arbitrator in the event any arbitrator becomes unable to continue as arbitrator for any reason. (ii) The arbitration shall be deemed commenced when the claimant(s) deliver a notice of arbitration to all of the respondents in the manner provided for notices in Section 8.4. The parties hereto agree that the preliminary conference shall be no later than ten (10) days after the constitution of the Tribunal. The parties hereto agree that any service or written communication (including, the answer, any reply or exchange of information) under the DRAA or the Rules shall be made in a manner provided by Section 8.4 of this Agreement, or as otherwise agreed by the parties. In connection with respect any arbitration proceeding hereunder, the Tribunal shall allow reasonable requests for the production of documents relevant to which a party seeks injunctive the dispute and permit the taking of depositions limited to not more than five (5) persons on each side and for not more than six (6) hours in total for the deposition of each such person. Where reasonably necessary, depositions may be taken by videoconference or other equitable relieftelephonic means, or in the jurisdiction where a witness resides or regularly transacts business. The Tribunal may seek to compel the production of evidence from non-parties to the fullest extent permitted by applicable Law. The arbitration hearing shall be submitted limited to arbitration by one arbitrator pursuant (1) day, if the Tribunal deems such limitation appropriate, and provided, that the Tribunal, where it considers it appropriate in order to provide any party with a full and fair opportunity to be heard, may require a hearing be held over the Commercial Arbitration Rules course of more than one day, and shall be conducted as soon as reasonably practicable after the constitution of the American Arbitration Association Tribunal, as determined by the Tribunal. (iii) For the “AAA”purposes of DRAA § 5808(b). Judgment upon , and all other purposes, the Tribunal shall issue its final award as promptly as practicable taking into account the nature of the claims and any award rendered other facts or circumstances the Tribunal deems relevant, but in such no event later than ninety (90) calendar days after the close of the arbitration will be binding and may be entered in any court having jurisdiction thereofhearing. The parties agree that the arbitrator Tribunal may extend any deadline set forth in any such matter shall be directed Section 8.13(b)(ii) and (iii) if, in its own discretion, more time is needed in light of the nature of the claims and the relevant facts and circumstances. The Tribunal is authorized to award reasonable attorneys’ fees monetary damages and to grant specific performance of this Agreement and other injunctive relief, including interim relief pending the prevailing party. The arbitrator shall also be directed to award the arbitrator’s compensation charges and the administrative fees of the AAA to the prevailing partyfinal award. The parties knowingly hereto shall bear their own costs incurred in connection with the arbitration and voluntarily share equally the fees and expenses of the Tribunal and the costs of administration. (iv) Nothing in this Section 8.13(b) shall prevent a party from seeking provisional, interim or conservatory measures from any court of competent jurisdiction at any time if any such party believes in good faith that it will suffer irreparable injury before the Tribunal has been appointed or before the Tribunal has had time to render a final award. Any such request by a party to a court for provisional, interim or conservatory measures shall not be deemed incompatible with the agreement to arbitrate in this Section 8.13(b), the DRAA or a waiver of the right to arbitrate. (v) The arbitral award shall be final and non-appealable. Judgment upon the arbitral award may be entered and enforced in any court of competent jurisdiction. The parties hereto hereby agree to waive any claim that this arbitration provision agreement to arbitrate is not valid under the Laws of the U.S., any foreign country or any international agreement. (vi) For the avoidance of doubt, and in furtherance of Section 8.13(a) of this Agreement, the parties hereto hereby acknowledge and agree that arbitration any legal proceeding conducted under this Section 8.13(b) shall be instead governed by or construed under the laws of any civil litigationthe State of Delaware, meaning that without regard to principles of conflict of laws and regardless of whether the parties laws of the State of Delaware govern the parties’ other rights, remedies, liabilities, powers and duties. (c) Notwithstanding anything in this Section 8.13 to the contrary, each are waiving any rights to a jury trial. Each of the parties to agrees that it will not bring any Proceeding against the Debt Financing Sources or the SBLC Financing Sources in connection with the Debt Financing, the SBLC Financing, the Debt Commitment Letter, the SBLC Commitment Letter or this Agreement consents to personal or any of the transactions contemplated hereby (or the abandonment or termination thereof) in any forum other than the Supreme Court of the State of New York, County of New York, Borough of Manhattan or, if under applicable law exclusive jurisdiction and venue for any equitable action sought is vested in the Federal courts, the United States District Court for the Southern District of New Jersey and any state court of competent jurisdiction in the State of New Jersey that is located in Passaic County (and in the appropriate appellate courts from any of the foregoing). Notwithstanding the foregoing, the Executive and the Employer agree that, prior to submitting a dispute under this Agreement to arbitration, the parties shall submit, for a period of sixty (60) days, to voluntary mediation before a jointly selected neutral third party mediator under the auspices of JAMS, New York City, New York, Resolution Center (or any successor location), pursuant to the procedures of JAMS International Mediation Rules conducted in the State of New York (howeverand appellate courts thereof), County of New York, Borough of Manhattan. In any such mediation action, each party hereto hereby irrevocably and unconditionally (i) agrees not to commence any such Proceeding except in such courts; (ii) agrees that any claim in respect of any such Proceeding may be heard and determined in such courts; (iii) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or obligation hereafter have to mediate shall not suspend the laying of venue of any such Proceeding in such courts; (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Proceeding in such courts; (v) consents to service of process inside or otherwise delay any termination or other action outside the territorial jurisdiction of the Employer courts referred to in this Section 8.13(c) in the manner provided for notices in Section 8.4, or affect in any other manner permitted by Law; and (vi) hereby irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any litigation against the Employer)Debt Financing Sources or the SBLC Financing Sources in connection with the Debt Financing, the SBLC Financing, the Debt Commitment Letter, the SBLC Commitment Letter or this Agreement or the transactions contemplated hereby.

Governing Law; Consent to Jurisdiction; Arbitration. This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by, and construed and interpreted in accordance with, the laws of the State of New Jersey, without giving effect to the choice of law provisions thereof. Any unresolved controversy or claim arising out of or relating to this Agreement, except (i) as otherwise provided in this Agreement or (ii) with respect to which a party seeks injunctive or other equitable relief, shall be submitted to arbitration by one arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). Judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. The parties agree that the arbitrator in any such matter shall be directed to award reasonable attorneys’ fees to the prevailing party. The arbitrator shall also be directed to award the arbitrator’s compensation charges and the administrative fees of the AAA to the prevailing party. The parties knowingly and voluntarily agree to this arbitration provision and acknowledge that arbitration shall be instead of any civil litigation, meaning that the parties each are waiving any rights to a jury trial. Each of the parties to this Agreement consents to personal jurisdiction and venue for any equitable action sought in the United States District Court for the District of New Jersey and any state court of competent jurisdiction in the State of New Jersey that is located in Passaic Essex County (and in the appropriate appellate courts from any of the foregoing). Notwithstanding the foregoing, the Executive and the Employer agree that, prior to submitting a dispute under this Agreement to arbitration, the parties shall submit, for a period of sixty (60) days, to voluntary mediation before a jointly selected neutral third party mediator under the auspices of JAMS, New York City, New York, Resolution Center (or any successor location), pursuant to the procedures of JAMS International Mediation Rules conducted in the State of New York (however, such mediation or obligation to mediate shall not suspend or otherwise delay any termination or other action of the Employer or affect any other right of the Employer).