ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY
MATTER FOR WHICH IT HAS SUBMITTED TO JURISDICTION HEREBY.
A JUDGMENT IN ANY
SUCH PROCEEDING MAY BE ENFORCED IN ANY OTHER COURTS TO WHOSE JURISDICTION THE
APPLICABLE PARTY MAY BE SUBJECT.
EACH PARTY (X) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER OF A RIGHT TO A JURY TRIAL AND (Y) ACKNOWLEDGES
THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS, AGREEMENTS AND CERTIFICATIONS IN THIS
SECTION.
210
SECTION 6.7. SUCCESSORS.
ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS CONTAINED IN THIS AGREEMENT AND THE WARRANT CERTIFICATE BY OR FOR THE
BENEFIT OF THE COMPANY AND THE HOLDERS SHALL INURE TO THE BENEFIT OF, AND SHALL
BIND, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
211
SECTION 6.8. COUNTERPARTS .
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND EACH OF SUCH COUNTERPARTS SHALL FOR ALL PURPOSES BE DEEMED TO
BE AN ORIGINAL, AND ALL SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND
THE SAME INSTRUMENT.
211
SECTION 6.9. TABLE OF CONTENTS.
THE TABLE OF CONTENTS AND HEADINGS OF THE
ARTICLES AND SECTIONS OF THIS AGREEMENT HAVE BEEN INSERTED FOR CONVENIENCE OF
REFERENCE ONLY, ARE NOT INTENDED TO BE
Confidential materials omitted and filed separately with the Secutities and
Exchange Commission.
Asterisks denote such omission.
CONSIDERED A PART HEREOF AND SHALL NOT MODIFY OR RESTRICT ANY OF THE TERMS OR
PROVISIONS HEREOF.
211
SECTION 6.10. SEVERABILITY.
THE PROVISIONS OF THIS AGREEMENT ARE SEVERABLE, AND
IF ANY CLAUSE OR PROVISION SHALL BE HELD INVALID, ILLEGAL OR UNENFORCEABLE IN
WHOLE OR IN PART IN ANY JURISDICTION, THEN SUCH INVALIDITY OR UNENFORCEABILITY
SHALL AFFECT IN THAT JURISDICTION ONLY SUCH CLAUSE OR PROVISION, OR
PART THEREOF, AND SHALL NOT IN ANY MANNER AFFECT SUCH CLAUSE OR PROVISION IN ANY
OTHER JURISDICTION OR ANY OTHER CLAUSE OR PROVISION OF THIS AGREEMENT IN ANY
JURISDICTION.
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SECTION 6.11. REMEDIES.
THE RIGHTS AND REMEDIES PROVIDED HEREIN SHALL BE
CUMULATIVE AND NOT EXCLUSIVE OF ANY OTHER RIGHTS OR REMEDIES AVAILABLE.
THE
COMPANY AND THE INITIAL HOLDER ACKNOWLEDGE AND AGREE THAT THE REMEDY AT LAW FOR
ANY BREACH OR THREATENED BREACH BY THE OTHER PARTY IN THE PERFORMANCE OR
COMPLIANCE WITH ANY OF THE TERMS OF THIS AGREEMENT OR THE WARRANTS IS NOT AND
WOULD NOT BE ADEQUATE AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, SUCH
TERMS MAY BE SPECIFICALLY ENFORCED BY A DECREE FOR SPECIFIC PERFORMANCE,
INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDIES OR BY AN INJUNCTION AGAINST
VIOLATION OF ANY SUCH TERMS OR OTHERWISE AND EACH OF THE COMPANY AND THE INITIAL
HOLDER AGREES NOT TO ALLEGE, AND HEREBY WAIVES THE DEFENSE, THAT AN ADEQUATE
REMEDY EXISTS AT LAW.
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EXHIBIT A
-
Form of Warrant Certificate
EXHIBIT B
-
Form of Transfer Certificate
EXHIBIT C
-
Form of Certification
Confidential materials omitted