INVESTIGATION MADE BY
OR ON BEHALF OF THE INVESTORS.
ALL AMOUNTS DUE UNDER THIS SECTION 7.7 SHALL BE
PAYABLE ON WRITTEN DEMAND THEREFOR.
7.8.
COUNTERPARTS; FAXES.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL,
BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
THIS
AGREEMENT MAY ALSO BE EXECUTED VIA FACSIMILE, WHICH SHALL BE DEEMED AN ORIGINAL.
7.9.
BINDING EFFECT; ASSIGNMENT; COMPLETE
AGREEMENT.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
COMPANY AND THE INVESTORS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT
THAT THE COMPANY SHALL NOT HAVE THE RIGHT TO ASSIGN THIS AGREEMENT OR ANY OF
THEIR RIGHTS, INTERESTS, OR OBLIGATIONS HEREUNDER; UNLESS SIMULTANEOUSLY
15
THEREWITH, THE NOTES, TOGETHER WITH ALL ACCRUED AND UNPAID INTEREST THEREON AND
ALL OTHER OBLIGATIONS THEN DUE AND OWING HEREUNDER, ARE REPAID IN CASH IN FULL.
EACH OF THE INVESTORS MAY ASSIGN ITS RIGHTS UNDER THIS AGREEMENT, EXCEPT THAT AN
INVESTOR SHALL NOT ASSIGN ANY OF THEIR RIGHTS UNDER THIS AGREEMENT TO A
FOR-PROFIT COMPANY ENGAGED IN THE BUSINESS OF RESEARCHING (INCLUDING, WITHOUT
LIMITATION, CONTRACT RESEARCH ORGANIZATIONS), DEVELOPING AND/OR COMMERCIALIZING
PHARMACEUTICAL OR BIOTECHNOLOGY PRODUCTS OR SERVICES THAT ARE THEN COMPETITIVE
WITH PRODUCTS OR SERVICES OF THE COMPANY OR LARK; PROVIDED, HOWEVER, THAT SUCH
TRANSFER COMPLIES WITH THE REQUIREMENTS OF APPLICABLE SECURITIES LAWS AND THE
TRANSFEREE AGREES TO BE BOUND BY, AND ENTITLED TO THE BENEFITS OF, THIS
AGREEMENT AS AN ORIGINAL PARTY THERETO.
7.10.
SEVERABILITY OF PROVISIONS.
ANY PROVISION OF THIS
AGREEMENT WHICH IS PROHIBITED OR UNENFORCEABLE SHALL BE INEFFECTIVE TO THE
EXTENT OF SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT INVALIDATING THE
REMAINING PROVISIONS HEREOF.
7.11.
TITLES AND SUBTITLES; CROSS-REFERENCES.
THE TITLES
AND SUBTITLES USED IN THIS AGREEMENT ARE USED FOR CONVENIENCE ONLY AND ARE NOT
TO BE CONSIDERED IN CONSTRUING OR INTERPRETING THIS AGREEMENT.
ALL REFERENCES
IN THIS AGREEMENT TO ARTICLES, SECTIONS, SUBSECTIONS, EXHIBITS AND SCHEDULES,
SHALL BE TO ARTICLES, SECTIONS, SUBSECTIONS, EXHIBITS AND SCHEDULES OF THIS
AGREEMENT UNLESS OTHERWISE EXPLICITLY SPECIFIED.
ALL REFERENCES TO STATUTES AND
RELATED REGULATIONS SHALL INCLUDE ANY AMENDMENTS OF SAME AND ANY SUCCESSOR
STATUTES AND REGULATIONS.
7.12.
GOVERNING LAW; CONSENT TO JURISDICTION.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CHOICE OF LAW PRINCIPLES
THEREOF.
THE COMPANY AND THE INVESTORS HEREBY (A) IRREVOCABLY CONSENT AND
SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED
IN NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND (B) IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT ANY OF THEM
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH
IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING
IN THIS