INTERPRETATION OF THIS AGREEMENT.
SECTION 12.03.
NO WAIVER.
THE FAILURE OF A PARTY TO
INSIST UPON STRICT ADHERENCE TO ANY TERM OF THIS AGREEMENT ON ANY OCCASION SHALL
NOT BE CONSIDERED A WAIVER OR DEPRIVE THAT PARTY OF THE RIGHT THEREAFTER TO
INSIST UPON STRICT ADHERENCE TO THAT TERM OR ANY OTHER TERM OF THIS AGREEMENT.
ANY WAIVER MUST BE IN WRITING.
ANY OF THE COVENANTS OR AGREEMENTS CONTAINED IN
THIS AGREEMENT MAY BE WAIVED ONLY BY THE WRITTEN CONSENT OF THE INITIAL
PURCHASER AND THE INVESTORS.
SECTION 12.04.
SEVERABILITY.
IF ONE OR MORE PROVISIONS OF
THIS AGREEMENT ARE HELD TO BE UNENFORCEABLE UNDER APPLICABLE LAW, SUCH
PROVISION(S) SHALL BE EXCLUDED FROM THIS AGREEMENT AND THE BALANCE OF THIS
AGREEMENT SHALL BE INTERPRETED AS IF SUCH PROVISION WERE SO EXCLUDED AND SHALL
BE ENFORCEABLE IN ACCORDANCE WITH ITS TERMS SO LONG AS THE ECONOMIC OR LEGAL
SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE NOT AFFECTED IN
ANY MANNER MATERIALLY ADVERSE TO ANY PARTY.
SECTION 12.05.
EXCLUSIVE AGREEMENT; AMENDMENT.
THIS
AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS AMONG THE PARTIES WITH RESPECT TO ITS
SUBJECT MATTER, IS INTENDED (WITH THE DOCUMENTS REFERRED TO HEREIN) AS A
COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF THE AGREEMENT AMONG THE PARTIES
WITH RESPECT THERETO AND CANNOT BE CHANGED OR TERMINATED EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY THE PARTY OR PARTIES AGAINST WHOM ENFORCEMENT THEREOF IS
SOUGHT.
SECTION 12.06.
LIMITATION ON ASSIGNMENT; PARTIES IN
INTEREST.
(A)
NO ASSIGNMENT OF THIS AGREEMENT OR OF ANY
RIGHTS OR OBLIGATIONS HEREUNDER MAY BE MADE BY THE COMPANY OR THE INVESTORS (BY
OPERATION OF LAW OR OTHERWISE) WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER
PARTIES HERETO AND ANY ATTEMPTED ASSIGNMENT WITHOUT THE REQUIRED CONSENTS SHALL
BE VOID.
(B)
THIS AGREEMENT SHALL BE BINDING UPON, AND
SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, THE PARTIES AND THEIR
RESPECTIVE SUCCESSORS, TRANSFEREES AND ASSIGNS.
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SECTION 12.07.
OBLIGATIONS OF INVESTORS SEVERAL.
THE
OBLIGATIONS OF THE INVESTORS HEREUNDER SHALL BE SEVERAL AND NOT JOINT.
NO
INVESTOR SHALL BE RESPONSIBLE FOR THE BREACH OF ANY PROVISION OF THIS AGREEMENT
BY ANY OTHER INVESTOR.
SECTION 12.08.
GOVERNING LAW.
THIS AGREEMENT AND (UNLESS
OTHERWISE PROVIDED) ALL AMENDMENTS HEREOF AND WAIVERS AND CONSENTS HEREUNDER
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES THEREOF WHICH WOULD SPECIFY THE APPLICATION
OF THE LAW OF ANOTHER JURISDICTION.
SECTION 12.09.
JURISDICTION.
EACH OF THE INVESTORS AND
THE COMPANY (A) HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY, NEW YORK
FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF BROUGHT BY THE COMPANY, OR ANY INVESTOR,
(B) HEREBY WAIVES THE RIGHT TO JURY TRIAL AND (C) HEREBY WAIVES AND AGREES NOT
TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT,
ACTION OR PROCEEDING,