PARTIES TO THIS AGREEMENT, IN THE FORM ATTACHED HERETO AS EXHIBIT D.
9.13
"REGULATION D" MEANS REGULATION D AS PROMULGATED
UNDER BY THE SEC UNDER THE SECURITIES ACT.
9.14
"RULE 144" AND "RULE 144(K)" MEAN RULE 144 AND
RULE 144(K), RESPECTIVELY, PROMULGATED UNDER THE SECURITIES ACT, OR ANY
SUCCESSOR RULE.
9.15
"SEC" MEANS THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION.
9.16
"SEC DOCUMENTS" HAS THE MEANING SET FORTH IN
SECTION 3.6.
9.17
"SECURITIES" HAS THE MEANING SET FORTH IN THE
RECITALS.
9.18
"SECURITIES ACT" MEANS THE SECURITIES ACT OF
1933, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, OR ANY SIMILAR
SUCCESSOR STATUTE.
9.19
"WARRANTS" AND "WARRANT SHARES" HAVE THE MEANINGS
SET FORTH IN THE RECITALS.
16
ARTICLE X
GOVERNING LAW; MISCELLANEOUS
10.1
GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER.
THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED
STATES FEDERAL AND STATE COURTS LOCATED IN THE STATE OF NEW YORK WITH RESPECT TO
ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY.
10.2
COUNTERPARTS; SIGNATURES BY FACSIMILE.
THIS
AGREEMENT MAY BE EXECUTED IN TWO OR MORE COUNTERPARTS, ALL OF WHICH ARE
CONSIDERED ONE AND THE SAME AGREEMENT AND WILL BECOME EFFECTIVE WHEN
COUNTERPARTS HAVE BEEN SIGNED BY EACH PARTY AND DELIVERED TO THE OTHER PARTIES.
THIS AGREEMENT, ONCE EXECUTED BY A PARTY, MAY BE DELIVERED TO THE OTHER PARTIES
HERETO BY FACSIMILE TRANSMISSION OF A COPY OF THIS AGREEMENT BEARING THE
SIGNATURE OF THE PARTY SO DELIVERING THIS AGREEMENT.
10.3
INDEPENDENT NATURE OF INVESTORS' OBLIGATIONS AND
RIGHTS.
THE OBLIGATIONS OF EACH INVESTOR UNDER THIS AGREEMENT, THE REGISTRATION
RIGHTS AGREEMENT AND THE WARRANTS ARE SEVERAL AND NOT JOINT WITH THE OBLIGATIONS
OF ANY OTHER INVESTOR, AND NO INVESTOR SHALL BE RESPONSIBLE IN ANY WAY FOR THE
PERFORMANCE OF THE OBLIGATIONS OF ANY OTHER INVESTOR UNDER SUCH AGREEMENTS.
NOTHING CONTAINED HEREIN OR IN THE REGISTRATION RIGHTS AGREEMENT OR THE
WARRANTS, AND NO ACTION TAKEN BY ANY INVESTOR PURSUANT HERETO OR THERETO, SHALL
BE DEEMED TO CONSTITUTE THE INVESTORS AS A PARTNERSHIP, AN ASSOCIATION, A JOINT
VENTURE OR ANY OTHER KIND OF ENTITY, OR CREATE A PRESUMPTION THAT THE INVESTORS
ARE IN ANY WAY ACTING IN CONCERT OR AS A GROUP WITH RESPECT TO SUCH OBLIGATIONS
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH INVESTOR CONFIRMS THAT
IT HAS INDEPENDENTLY PARTICIPATED IN THE NEGOTIATION OF THE TRANSACTION
CONTEMPLATED HEREBY WITH THE ADVICE OF ITS OWN COUNSEL AND ADVISORS.
EACH
INVESTOR SHALL BE ENTITLED TO INDEPENDENTLY PROTECT AND ENFORCE ITS RIGHTS,
INCLUDING, WITHOUT LIMITATION, THE RIGHTS ARISING OUT OF THIS AGREEMENT, THE
REGISTRATION RIGHTS