TEXAS PACIFIC LAND TRUST
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By:
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/s/ David E. Barry
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Name: David E. Barry
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Title: Trustee
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By:
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/s/ John R. Norris, III
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Name: John R. Norris, III
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Title: Trustee
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THE INVESTOR GROUP
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HORIZON KINETICS LLC
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By:
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/s/ Jay Kesslen
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Name: Jay Kesslen
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Title: General Counsel
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SOFTVEST ADVISORS, LLC
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By:
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/s/ Eric L. Oliver
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Name: Eric L. Oliver
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Title: President
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ART-FGT FAMILY PARTNERS LIMITED
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By: TESSLER FMC LLC, its general partner
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By:
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/s/ Andrea Tessler
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Name: Andrea Tessler
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Title: Manager
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TESSLER FAMILY LIMITED PARTNERSHIP
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By: APRES VOUS LLC, its general partner
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By:
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/s/ Andrea Tessler
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Name: Andrea Tessler
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Title: Manager
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1. |
As part of your role as a member of the Committee, you are a consultant regarding conversion, governance, and other matters in accordance with the charter of the Committee (the “Charter”). You
have been selected for the Committee in part because of the unique information and expertise you bring to bear on the Trust’s potential Conversion and potential amendments to the Declaration of Trust. You hereby acknowledge and agree to
the terms of the Charter and irrevocably and unconditionally waive any and all rights you may have to challenge the Charter, any of its terms or its applicability to the Committee in any Legal Proceeding. Without limiting the generality
of the foregoing, you acknowledge and agree that, under the Charter, the Committee or the Trustees may recuse you from any portion of a Committee meeting and restrict access to documents and information of the Committee, including access
to any documents or information prepared by any of its advisors. Moreover, you acknowledge and agree that the Trust shall not be legally obligated to provide you with any information or materials under this Agreement. You further
acknowledge and agree that service on the Committee, and receipt of any legal advice from legal outside counsel to the Trust (including receipt by the Committee), shall not be grounds to disqualify or challenge Sidley Austin LLP from
continuing to represent the Trust and the Trustees in any Legal Proceeding (defined below) related to the Litigation (defined below), this Agreement, any Conversion, the Committee, or any other matter. You likewise acknowledge and agree
that service on the Committee shall not be grounds to disqualify or challenge Gibson Dunn & Crutcher LLP from continuing to represent the Investor Group in any Legal Proceeding related to the Litigation, any Conversion or or the
Committee.
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2. |
Upon the terms of, and subject to the conditions in, this Agreement, the Trust and its Representatives (defined below) may provide you with certain confidential information, the disclosure of which could harm the Trust and its
subsidiaries. As a condition to your being furnished such information, you agree to treat any communications, documents and other information, whether written or oral, concerning the Committee or the Trust or any of its subsidiaries that
is obtained by you as a result of your service on the Committee (such information herein collectively referred to as the “Confidential Information”) in accordance with the provisions of this
Agreement. The term “Confidential Information” includes, but is not limited to, all notes, analyses, data, or other documents furnished to you or prepared by you to the extent such materials reflect or are based upon, in whole or in
part, the Confidential Information. You will be providing close and continuous assistance not only to the Trustees but also to the Trust’s outside counsel, and Confidential Information further includes information that is subject to
attorney-client privilege, the attorney work-product doctrine, or another applicable privilege. The term “Confidential Information” excludes information that is neither subject to attorney-client privilege nor the attorney work-product
doctrine nor another applicable privilege, and (a) was within your possession prior to it being furnished to you by the Committee, the Trust, or any of their Representatives provided that such source of such information was not known by
you, after reasonably inquiry, to be disclosing such information in breach of a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, the Trust, or any of its subsidiaries; (b) is or
becomes available to you from a source other than the Committee, the Trust or any of their Representatives provided that such source of such information is not known by you, after reasonably inquiry, to be disclosing such information in
breach of a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, the Trust or any of its subsidiaries; (c) is or becomes generally available to the public other than as a result of a
disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is independently developed by you without the use of the Confidential Information or in violation of the terms of this Agreement.
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3. |
You hereby agree that (x) you shall keep the Confidential Information confidential and (y) use the Confidential Information solely for the purposes of the Committee as set forth in the Charter. Without the prior written consent of the
Trust, you shall not, directly or indirectly, share any Confidential Information with any other person other than the Trust’s Representatives; provided, however,
that you may disclose any of such information to your Representatives who (i) need to know such information for the sole purpose of advising you in connection with the Committee and its work and (ii) executed the undertaking attached
hereto as Exhibit A and delivered to the Trust a copy of such executed undertaking prior to such disclosure (except that the requirement of the foregoing clause (ii) shall not apply to your outside counsel); provided, further, that you shall be responsible for any violation of the confidentiality provisions of this Agreement by your Representatives as if they were parties hereto.
Without the prior written consent of the Trust, you shall not make, nor shall you permit any of your Representatives to make, directly or indirectly, any public statement about the Committee or its work. You acknowledge and agree that,
without the prior written consent of the Trust, you may not, and you may not permit any of your Representatives to, use any Confidential Information in any Legal Proceeding or challenge the determination of attorney-client privilege or
any other privilege related to any Confidential Information. Notwithstanding anything contained in this Paragraph, you and your Representatives shall be permitted to refer any inbound inquiry regarding the Committee or any agreements or
actions related thereto to the public documents issued by the Trust related to the Committee.
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4. |
Notwithstanding anything to the contrary provided in this Agreement, in the event you receive a request or are required by deposition, interrogatory, request for documents, subpoena, court order, similar judicial process, civil
investigative demand or similar process, or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) or are otherwise required
pursuant to applicable law, regulation, or the rules of any national securities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential Information, you agree, to the extent
permitted by applicable law, to (a) promptly notify the Trust of the existence, terms, and circumstances surrounding such External Demand or other requirement and (b) in the case of any External Demand, cooperate with the Trust, at the
Trust’s reasonable request and sole expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or not
available or that the Trust waives compliance with the provisions hereof, (i) you may disclose only that portion of the Confidential Information which you are advised by your external legal counsel is legally required to be disclosed, and
you shall inform the recipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information and exercise reasonable efforts to obtain assurance that confidential
treatment will be accorded, and (ii) you shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by you in violation of this Agreement. For the avoidance of doubt, it is
understood and agreed that there shall be no “applicable law,” “regulation,” or “rule” requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, you would be prohibited from
purchasing, selling, or engaging in derivative or other voluntary transactions with respect to the securities of the Trust or you would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section
14 of the Securities Exchange Act of 1934, as amended or the rules promulgated thereunder (the “Exchange Act”).
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5. |
You acknowledge that you may receive material non-public information concerning the Trust. You acknowledge that the U.S. securities laws generally prohibit any person who has received material non-public information concerning an
issuer from purchasing or selling securities of such issuer and from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such
securities.
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6. |
Promptly upon request by the Trust, you shall either, at your option, (a) destroy the Confidential Information and any copies thereof, or (b) return to the Trust all Confidential Information and any copies thereof, and, in either case,
confirm in writing to the Trust that all such material has been destroyed or returned, as applicable, in compliance with this Agreement; provided, however,
that you shall be permitted to retain Confidential Information (x) in accordance with bona fide policies and procedures (such as internal record retention policies, document retention policies, internal audit policies and similar
compliance policies) and (y) to the extent necessary to comply with applicable law or to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you shall continue to be
bound by the obligations contained herein with respect to any Confidential Information until such Confidential Information no longer constitutes Confidential Information pursuant to the terms hereof. You shall not be required to destroy
any computer or other electronic hardware or systems, to expunge or erase or render any electronic data irrecoverable which cannot reasonably be expunged or erased, or to disable any existing electronic data backup procedures or archival
systems.
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7. |
You acknowledge and agree that the Trust would be irreparably injured by a breach of this Agreement and that money damages are an inadequate remedy for an actual or threatened breach of this Agreement. Accordingly, you agree to the
granting of specific performance of this Agreement and injunctive or other equitable relief as a remedy for any such breach or threatened breach, without proof of actual damages, and further agree to waive any requirement for the securing
or posting of any bond in connection with any such remedy. Such remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity. This
provision is a material inducement to the Parties entering into this Agreement
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8. |
THE CONSTRUCTION, INTERPRETATION, AND PERFORMANCE OF THIS AGREEMENT AND ALL TRANSACTIONS UNDER IT SHALL BE EXCLUSIVELY GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW RULES. THE PARTIES HEREBY
IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN DALLAS COUNTY, TEXAS, FOR RESOLUTION OF ALL DISPUTES BETWEEN THE PARTIES ARISING UNDER THIS AGREEMENT. EACH
PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT.
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9. |
This Agreement shall terminate at 5:00 P.M. Dallas, Texas time on the date that is twenty-four months after the date the Committee ceased to exist; provided, however, that you shall maintain in accordance with
the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for such longer time as such information constitutes a trade secret of the Trust or any of its Affiliates under applicable law;
provided, further, that any liability for breach of this Agreement shall survive such termination. Notwithstanding anything to the contrary in this Agreement, the obligations under clause (y) of the first sentence of Section 3 shall
expire on the date that is 90 days following the end of the term of the Committee pursuant to Article H of the Charter. No later than 5:00 pm Dallas time on the second business day following such date (the “Cleansing Deadline”),
the Trust shall either (i) publicly disclose, by means of a filing on Form 8-K or other periodic report required or permitted to be filed under applicable securities laws, an appropriate summary description of any Confidential Information
shared with you hereunder that the Trust determines, based on advice of the Trust’s outside counsel, constitutes material nonpublic information as of such date or (ii) confirm to you in writing that none Confidential Information shared
with you hereunder constitutes material nonpublic information as of such date. In the event that the Trust fails to comply with the foregoing obligation by the Cleansing Deadline, then you shall thereafter be permitted to publicly
disclose, without liability, an appropriate summary description that reflects any Confidential Information that you in good faith believe constitutes material nonpublic information regarding the Company. In either case, this Agreement,
in and of itself, shall not be deemed to impose a restriction on your or your Representatives’ ability to trade securities of the Trust.
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10. |
As used in this Agreement: (a) the terms “Affiliate” and “Associate” (and any plurals thereof) shall have the meanings ascribed to such terms under Rule
12b-2 promulgated under the Exchange Act; (b) the term “Investor Group” shall mean Eric L. Oliver, SoftVest, L.P., SoftVest Advisors, LLC, Murray Stahl, Horizon Kinetics LLC, Horizon Kinetics Asset
Management LLC (f/k/a Horizon Asset Management LLC), Allan R. Tessler, ART-FGT Family Partners Limited, and Tessler Family Limited Partnership; (c) the term “Legal Proceeding” shall mean any
lawsuit, claim or other legal proceeding (including any books and records demand); (d) the term “Litigation” shall mean Case 3:19-cv-01224-B Texas Pacific Land Trust et al v. Oliver; and (e)
the term “Representatives” shall mean a person’s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers, consultants, accountants,
attorneys, legal, financial or other advisors, agents and other representatives.
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11. |
You agree to promptly confer and, if necessary, submit to mediation in front of a JAMS mediator in Dallas, Texas within 20 days of any disputes arising out of or relating to this Agreement, the Confidentiality Agreement, and/or the
Charter.
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Sincerely,
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TEXAS PACIFIC LAND TRUST
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By:
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Name:
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Title:
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By:
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Committee Member
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Name:
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Dated:
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Signature:
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(a)
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Definitions. As used herein, (a) the “Conversion” shall have the meaning given to that term in the Settlement
Agreement dated July 30, 2019 by and between the Parties (the “Settlement Agreement”); (b) the “Investor Group” shall mean Eric L. Oliver, SoftVest, L.P., SoftVest Advisors, LLC, Murray Stahl, Horizon Kinetics LLC, Horizon
Kinetics Asset Management LLC (f/k/a Horizon Asset Management LLC), Allan R. Tessler, ART-FGT Family Partners Limited, and Tessler Family Limited Partnership; and (c) the “Litigation” shall mean the pending litigation captioned Case
3:19-cv-01224-B Texas Pacific Land Trust et al v. Oliver, including pending books and records demands and any and all claims arising out of or related to the Conversion, and which, for the avoidance
of all doubt, will be dismissed with prejudice in accordance with this Release.
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(b)
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Mutual General Releases. Effective as of the completion of the Conversion (the “Effective Date”), each of the Trust
and the Trustees, on the one hand, and each of the members of the Investor Group, on the other hand, on behalf of each of themselves and for all of their past and present affiliated, associated, related, parent and subsidiary entities,
joint ventures and partnerships, successors, assigns, and the respective owners, trust beneficiaries, officers, directors, partners, members, managers, principals, parents, subsidiaries, predecessor entities, agents, representatives,
employees, holders of certificates or sub-share certificates, shareholders, other security holders, advisors, consultants, attorneys, heirs, executors, administrators, successors and assigns of any said person or entity, and any other
person claiming (now or in the future) through or on behalf of any of said persons or entities (collectively “Released Persons”), irrevocably and unconditionally generally release, remit, settle, acquit and forever discharge the
other and all of their Released Persons, from any and all causes of action, claims, counter-claims, cross-claims, actions, rights, judgments, obligations, damages, amounts, demands, losses, controversies, contentions, complaints, promises,
accountings, bonds, bills, debts, dues, sums of money, expenses, specialties and fees and costs (whether direct, indirect or consequential, incidental or otherwise including, without limitation, attorney’s fees or court costs, of whatever
nature) incurred in connection therewith of any kind whatsoever, whether known or unknown, suspected or unsuspected, in their own right, representatively, derivatively or in any other capacity, in law or in equity or liabilities of whatever
kind or character, arising under federal, state, foreign, or common law or the laws of any other relevant jurisdiction, which have arisen, could have arisen, arise now, or hereafter may arise out of or relate in any manner to the
allegations, facts, events, transactions, occurrences, statements, representations, misrepresentations, omissions, or any other matter, thing, or cause whatsoever (or any series thereof, embraced, involved, arising out of, set forth in, or
otherwise related) prior to the Effective Date, including, without limitation, claims that were or could have been asserted in the Litigation (collectively, the “Released Claims”); provided, however,
that nothing in this Release shall (i) release (A) any rights or duties of any Released Persons under this Release or the Settlement Agreement, (B) any claims or causes of action that any Released Persons may have for the breach or
enforcement of any provision of this Release or the Settlement Agreement, (C) any statutory, corporate, or contractual rights to indemnification, expense reimbursement, or expense advancement of any Released Person; (ii) limit in any way
the defense of any Released Person (including any potential counterclaim, cross-claim or other similar claim of any Released Person) with respect to any Released Claim; or (iii) limit in any way any Released Person’s rights to
indemnification, expense reimbursement, or expense advancement in connection with any Released Claim.
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(c)
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Covenant Not to Sue. To the fullext extent permitted by law, the Parties covenant not to (i) assert any Released Claim
against any other Party in any forum, and (ii) encourage or assist anyone to assert any Released Claim against any other Party (except as may be required pursuant to subpoena, court order, government agency order or subpoena, or other
compulsory legal process).
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(d)
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Intent to Release. The Parties acknowledge and agree that they may be unaware of or may discover facts in addition to or
different from those which they now know, anticipate or believe to be true related to or concerning the Released Claims. The Parties know that such presently unknown or unappreciated facts could materially affect the claims or defenses of a
Party or Parties. It is nonetheless the intent of the Parties to give a full, complete, and final general release and discharge of the Released Claims. In furtherance of this intention, the general releases herein given shall be and remain
in effect as full and complete releases with regard to the Released Claims notwithstanding the discovery or existence of any such additional or different claim or fact. To that end, with respect to the Released Claims only, the Parties
expressly waive and relinquish any and all provisions, rights, and benefits conferred by any law of the United States or of any state or territory of the United States or of any other relevant jurisdiction, or principle of common law, under
which a general release does not extend to claims which the Parties do not know or suspect to exist in their favor at the time of executing the release, which if known by the Parties might have affected the Parties’ settlement.
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(e)
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No Transfer of Rights. Each Party represents and warrants that such Party has not transferred or assigned, or purported to
transfer or assign, to any person any claims, demands, obligations, losses, causes of action, damages, penalties, costs, expenses, attorneys’ fees, liabilities or indemnities herein released. Each of the Parties represents and warrants
that neither such Party nor any assignee of such Party has filed or otherwise initated any lawsuit, action or other legal proceeding against the other Party that is currently pending other than the Litigation.
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(f)
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Acknowledgement of Mutual Compromise and Valuable Consideration. Each Party waives any and all rights (to the extent
permitted by state law, federal law, principles of common law, or any other law) that may have the effect of limiting the releases set forth in this Release. Without limiting the generality of the foregoing, each Party acknowledges and
agrees that there is a risk that the damages and costs that such Party believes such Party has suffered or will suffer may turn out to be other than or greater than those now known, suspected or believed to be true. Facts on which each
Party has been relying in entering into this Release may later turn out to be other than or different from those now known, suspected or believed to be true. Each Party acknowledges that in entering into this Release, such Party has
expressed that such Party agrees to accept the risk of any such possible unknown damages, claims, facts, demands, actions and causes of action. Each Party acknowledges and agrees that the releases and covenants provided for in this Release
are binding, unconditional, and final as of the date hereof. The Parties hereby acknowledge and agree that the exchange set forth in this Release and the Settlement Agreement reflects a mutual compromise and constitutes an exchange of
valuable consideration. All Parties agree tha this is a material inducement to each of the Parties entering into this Release.
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(g)
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Waiver of California Civil Code § 1542. The Parties agree to expressly waive all rights under Section 1542 of the Civil
Code of the State of California, up to and including the date the Parties sign the Release. Section 1542 provides as follows:
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OF OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
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(h)
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Representations and Warranties. By executing this Agreement and as a condition precedent to any obligations or liabilities
of the Parties, the Parties expressly acknowledge, represent, and warrant that they (i) are not relying upon any statements, understandings, representations, expectations, or agreements other than those expressly set forth in this Release;
(ii) have made their own investigation of the facts and are relying solely upon their own knowledge and the advice of their own legal counsel; (iii) have carefully read and understood all of the provisions of this Agreement; (iv) KNOWINGLY WAIVE ANY CLAIM THAT THIS RELEASE WAS INDUCED BY ANY MISREPRESENTATION, OMISSION, OR NONDISCLOSURE AND ANY RIGHT TO RESCIND OR AVOID THIS RELEASE BASED UPON PRESENTLY EXISTING FACTS, KNOWN OR UNKNOWN;
(iv) ARE THE LAWFUL OWNER OF THE CLAIMS AND THE POTENTIAL CLAIMS RELEASED IN THIS AGREEMENT; (v) have full capacity and authority to settle, compromise, and release their claims and potential claims
and to enter into this Release; (vi) no other person or entity has inherited, acquired, or has been assigned, or will in the future inherit, acquire, or have any right to assert, against any of the Parties any portion of the claims or
potential claims released in this Release; and (vii) they know of no other person or entity that intends to assert a claim by, through, under, or on behalf of them. The Parties stipulate that each Party is relying upon these
representations and warranties in entering into this Release. These representations and warranties shall survive the execution of this Release.
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(i)
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No Admission of Fault or Liability. This Release is made to terminate any and all controversies, real or potential,
asserted or unasserted, and claims for injuries or damages of any nature whatsoever, real or potential, asserted or unasserted, by the Parties that were brought or could have been brought in the Litigation. Neither the execution nor
delivery of this Agreement, nor compliance with its terms, shall constitute an admission of any fault or liability on the part of any of the Parties. None of the Parties admit liability of any sort and, in fact, all Parties expressly deny
any liability.
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(j)
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Authority and Binding Effect. Each Party, on behalf of itself and its respective Released Persons, hereby represents that
it has entered into this Release fully and voluntarily from its own information and investigation; that it has the authority to so enter into this Release; and that it has had the opportunity to consult with independent legal counsel with
regard to the releases contained herein, and having been so advised, expressly waives any rights it may have under any statute, law, rule or regulation applicable to the Released Claims released hereby.
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(k)
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Amendments in Writing; No Waiver. No amendment, modification or waiver of this Release shall be binding or effective for
any purpose unless it is made in a writing signed by the Party against whom enforcement of such amendment, modification or waiver is sought. No course of dealing between the Parties to this Release shall be deemed to modify, amend or
discharge any provision or term of this Release. No delay by any Party to this Release in the exercise of any of its rights or remedies shall operate as a waiver thereof, and no single or partial exercise by any Party to this Release of
any such right or remedy shall preclude any other or further exercise thereof. A waiver of any right or remedy on any one occasion shall not be construed as a bar to or waiver of any such right or remedy on any other occasion.
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(l)
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Multiple Counterparts. This Release may be executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same agreement, and shall become binding when one or more counterparts have been signed by each of the Parties hereto and delivered to each of the other Parties hereto.
Delivery of an executed counterpart of this Release by facsimile or electronic mail in portable document format (pdf) shall be equally as effective as delivery of an original executed counterpart of this Release.
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(m)
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Notice. All communications pursuant to this Release shall be sent to:
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For the Investor Group:
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Jay Kesslen
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General Counsel
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Horizon Kinetics LLC
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470 Park Avenue South
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New York NY 10016
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Telephone 914.703.6904
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Facsimile 914.703.6899
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jkesslen@horizonkinetics.com
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with a courtesy copy, which shall not constitute service, to:
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Gibson Dunn & Crutcher LLP
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Attn: Rob Walters
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2100 McKinney Avenue, Suite 1100
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Dallas, TX 75201
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RWalters@gibsondunn.com
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For the Trust and the Trustees:
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Texas Pacific Land Trust
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1700 Pacific Avenue, Suite 2770
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Dallas, TX 75201
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jnorris@tpltrust.com
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dbarry@tpltrust.com
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with a courtesy copy, which shall not constitute service, to:
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Sidley Austin LLP
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Attn: Yvette Ostolaza, Yolanda C. Garcia, and Kai H. Liekefett
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2021 McKinney Avenue, Suite 2000
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Dallas TX 75201
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yvette.ostolaza@sidley.com
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ygarcia@sidley.com
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kliekefett@sidley.com
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(n)
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Choice of Law. THE CONSTRUCTION AND INTERPRETATION OF THIS RELEASE SHALL BE EXCLUSIVELY GOVERNED BY THE LAWS OF THE STATE
OF TEXAS, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW RULES. BY SIGNING THIS RELEASE, THE PARTIES IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LOCATED IN DALLAS COUNTY,
TEXAS, OR THE DISTRICT COURT FOR DALLAS COUNTY, TEXAS, IF NO GROUNDS FOR FEDERAL JURISDICTION ARE AVAILABLE, FOR RESOLUTION OF ALL DISPUTES RELATING TO OR ARISING UNDER THIS RELEASE. BY SIGNING THIS RELEASE, THE PARTIES IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS HE OR SHE MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY RELATED TO THIS RELEASE.
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(o)
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Construction. The Parties and their respective legal counsel participated in the preparation of this Release and the Parties have consulted their legal counsel,
and therefore, this Release shall be construed neither against nor in favor of any of the Parties hereto, but rather in accordance with the fair meaning thereof. Words in this Release of the male, female, or neutral gender shall be
construed to include any other gender where appropriate. Words used in this Release that are either singular or plural shall be construed to include the other where appropriate. The terms “Release,” “hereof,” “herein,” “hereby” and words
of similar import shall, unless otherwise stated, be construed to refer to this Release as a whole. The word “or” shall not be exclusive.
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(p)
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Headings. The headings in this Release are for convenience only and shall not limit, expand, affect, or alter the meaning
of any text.
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(q)
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Severability. Any provision of this Release that is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability, or legality of such provision
in any other jurisdiction. The Parties agree to negotiate in good faith to replace any illegal, invalid or unenforceable provision of this Release with a legal, valid, and enforceable provision that, to the extent possible, will preserve
the economic bargain of this Release.
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(r)
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Successors, Assigns, and Beneficiaries. This Release shall be binding upon and inure to the benefit of the Parties, each
Released Person and their respective successors, parents, affiliates, subsidiaries, officers, directors, partners, employees, and permitted assigns.
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