HERETO MAY EXECUTE THIS
AGREEMENT BY FACSIMILE SIGNATURE AND THE OTHER PARTIES HERETO WILL BE ENTITLED
TO RELY UPON SUCH FACSIMILE SIGNATURE AS CONCLUSIVE EVIDENCE THAT THIS AGREEMENT
HAS BEEN DULY EXECUTED BY SUCH PARTY.
10.8
HEADINGS; CONSTRUCTION.
THE HEADINGS OF THE VARIOUS SECTIONS OF
THIS AGREEMENT HAVE BEEN INSERTED FOR REFERENCE ONLY AND SHALL NOT BE DEEMED TO
BE A PART OF THIS AGREEMENT OR ANY RELATED DOCUMENT.
10.9
SPECIFIC PERFORMANCE.
THE COMPANY, ON THE ONE HAND, AND THE
PURCHASERS, ON THE OTHER HAND, ACKNOWLEDGE THAT MONEY DAMAGES WOULD NOT BE A
SUFFICIENT REMEDY FOR ANY BREACH OF THIS AGREEMENT.
IT IS ACCORDINGLY AGREED
THAT THE PARTIES SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF
AS REMEDIES FOR ANY SUCH BREACH, THESE REMEDIES BEING IN ADDITION TO ANY OF THE
REMEDIES TO WHICH THEY MAY BE ENTITLED AT LAW OR EQUITY.
10.10
REMEDIES CUMULATIVE.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE
REMEDIES PROVIDED HEREIN SHALL BE CUMULATIVE AND SHALL NOT PRECLUDE THE
ASSERTION BY ANY PARTY HERETO OF ANY OTHER RIGHTS OR THE SEEKING OF ANY OTHER
REMEDIES AGAINST ANY OTHER PARTY HERETO.
10.11
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN
ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF DELAWARE APPLICABLE
TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH
STATE.
10.12
JURISDICTION, WAIVER OF JURY TRIAL, ETC.
(A)
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT THE
ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
SERIES D SHARES, WARRANTS, CONVERSION SHARES OR WARRANT SHARES OR ANY AGREEMENTS
OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION
AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM
OF
45
IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM.
EACH
PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS
SET FORTH IN SECTION 10.4, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH
MAILING.
(B)
EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE SERIES D SHARES, WARRANTS, CONVERSION SHARES OR WARRANT SHARES OR
ANY OF THE RELATED DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. THE COMPANY (I) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE PURCHASERS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE PURCHASERS WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT THE
PURCHASERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO