other item).
The parties hereto
intend that each representation, warranty, and covenant contained herein shall
have independent significance.
If any party hereto has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty, or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which
such party has not breached shall not detract from or mitigate the fact that
such party is in breach of the first representation, warranty, or covenant.
10L.
Incorporation of Annexes, Schedules and Exhibits.
The annexes,
schedules and exhibits identified in this Agreement are incorporated herein by
reference and made a part hereof.
10M.
Registered Holders; Ownership.
As used in this Agreement and each of
the other Transaction Agreements, references to a "holder" of Notes, Warrants or
Underlying Common Stock shall mean the registered holder of such Notes, Warrants
or Underlying Common Stock as set forth in the Company's records.
For purposes
of this Agreement and each of the other Transaction Agreements, all holdings of
Notes, Warrants or Underlying Common Stock by Persons who are Affiliates of each
other shall be aggregated for purposes of meeting any threshold tests under this
Agreement and each of the other Transaction Agreements.
10N.
GOVERNING LAW.
TO THE EXTENT APPLICABLE, THE CORPORATE LAW OF THE
STATE OF DELAWARE SHALL GOVERN ALL ISSUES AND QUESTIONS CONCERNING THE RELATIVE
RIGHTS AND OBLIGATIONS OF COMPANY AND ITS SECURITYHOLDERS.
ALL OTHER ISSUES AND
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION
OF THIS AGREEMENT AND ANY OF THE OTHER TRANSACTION AGREEMENTS AND THE ANNEXES,
EXHIBITS AND SCHEDULES HERETO AND THERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF
THE COMMONWEALTH OF MASSACHUSETTS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE COMMONWEALTH OF
MASSACHUSETTS.
IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE
COMMONWEALTH OF MASSACHUSETTS SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION
OF THIS AGREEMENT AND EACH OF
46
THE OTHER TRANSACTION AGREEMENTS (AND ALL ANNEXES, SCHEDULES AND EXHIBITS HERETO
AND THERETO), EVEN THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF
LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY
APPLY.
10O.
JURISDICTION AND VENUE.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY PARTY HERETO WITH RESPECT TO THIS AGREEMENT OR ANY OTHER TRANSACTION
AGREEMENT SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN BOSTON, MASSACHUSETTS.
BY EXECUTING AND DELIVERING THIS
AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS TO WHICH THEY ARE A PARTY, THE
COMPANY AND EACH HOLDER OF NOTES, WARRANTS AND UNDERLYING COMMON STOCK, ACCEPTS
THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR
ANY OF THE OTHER TRANSACTION AGREEMENTS.
THE COMPANY AND EACH HOLDER OF NOTES,
WARRANTS AND UNDERLYING COMMON STOCK HEREBY