MAILED BY FIRST CLASS
MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE
COMPANY IN ANY SUCH SUIT OR PROCEEDING IN SUCH FORUM.
NOTHING HEREIN SHALL
AFFECT ANY INVESTOR'S RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
THE COMPANY AGREES THAT A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON SUCH JUDGMENT OR IN ANY OTHER LAWFUL MANNER.
(E)
THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS (INCLUDING ANY SCHEDULES AND EXHIBITS HERETO AND THERETO) CONSTITUTE
THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND THEREOF.
THERE ARE NO RESTRICTIONS, PROMISES, WARRANTIES OR
UNDERTAKINGS, OTHER THAN THOSE SET FORTH OR REFERRED TO HEREIN AND THEREIN.
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS SUPERSEDE ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF.
(F)
SUBJECT TO THE REQUIREMENTS OF SECTION 10
HEREOF, THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE
SUCCESSORS AND ASSIGNS OF EACH OF THE PARTIES HERETO.
(G)
THE HEADINGS IN THIS AGREEMENT ARE FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE
MEANING HEREOF.
(H)
THIS AGREEMENT MAY BE EXECUTED IN TWO OR
MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL BUT ALL OF WHICH
SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
THIS AGREEMENT, ONCE EXECUTED BY A
PARTY, MAY BE DELIVERED TO THE OTHER PARTY HERETO BY FACSIMILE TRANSMISSION OF A
COPY OF THIS AGREEMENT BEARING THE SIGNATURE OF THE PARTY SO DELIVERING THIS
AGREEMENT.
(I)
EACH PARTY SHALL DO AND PERFORM, OR
CAUSE TO BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND SHALL
EXECUTE AND DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND
DOCUMENTS, AS THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE
INTENT AND ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
(J)
UNLESS OTHER EXPRESSLY PROVIDED HEREIN,
ALL CONSENTS, APPROVALS AND OTHER DETERMINATIONS TO BE MADE BY THE INVESTORS
PURSUANT TO THIS AGREEMENT SHALL BE MADE BY THE INVESTORS HOLDING A MAJORITY IN
INTEREST OF THE REGISTRABLE SECURITIES (DETERMINED AS IF ALL PREFERRED STOCK
THEN OUTSTANDING HAD BEEN CONVERTED INTO OR EXERCISED FOR REGISTRABLE
SECURITIES) HELD BY ALL INVESTORS.
(K)
EACH PARTY TO THIS AGREEMENT HAS
PARTICIPATED IN THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT.
AS SUCH, THE
LANGUAGE USED HEREIN SHALL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES
HERETO TO EXPRESS THEIR MUTUAL INTENT, AND NO RULE OF STRICT CONSTRUCTION WILL
BE APPLIED AGAINST ANY PARTY TO THIS AGREEMENT.
16
(L)
FOR PURPOSES OF THIS AGREEMENT, THE TERM
"BUSINESS DAY" MEANS ANY DAY OTHER THAN A SATURDAY OR SUNDAY OR A DAY ON WHICH
BANKING INSTITUTIONS IN THE STATE OF NEW YORK ARE AUTHORIZED OR OBLIGATED BY
LAW, REGULATION OR EXECUTIVE ORDER TO CLOSE, AND THE TERM "TRADING DAY" MEANS