BE EXECUTED IN MULTIPLE
COUNTERPARTS, EACH OF WHICH MAY BE EXECUTED BY LESS THAN ALL OF THE PARTIES AND
SHALL BE DEEMED TO BE AN ORIGINAL INSTRUMENT WHICH SHALL BE ENFORCEABLE AGAINST
THE PARTIES ACTUALLY EXECUTING SUCH COUNTERPARTS AND ALL OF WHICH TOGETHER SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
SECTION 10.11
CHOICE OF LAW.
THIS AGREEMENT SHALL BE CONSTRUED UNDER THE
LAWS OF THE STATE OF NEW YORK.
SECTION 10.12
SPECIFIC ENFORCEMENT, CONSENT TO JURISDICTION.
(A)
THE COMPANY AND THE INVESTOR ACKNOWLEDGE AND AGREE THAT IRREPARABLE
DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT
WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE
BREACHED.
IT IS ACCORDINGLY AGREED THAT EITHER PARTY SHALL BE ENTITLED TO AN
INJUNCTION OR INJUNCTIONS TO PREVENT OR CURE BREACHES OF THE PROVISIONS OF THIS
AGREEMENT BY THE OTHER PARTY AND TO ENFORCE SPECIFICALLY THE TERMS AND
PROVISIONS HEREOF OR THEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO
WHICH EITHER PARTY MAY BE ENTITLED BY LAW OR EQUITY.
(B)
EACH OF THE COMPANY AND THE INVESTOR (I) HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT AND OTHER COURTS OF THE
UNITED STATES SITTING IN THE STATE OF NEW YORK FOR THE PURPOSES OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
(II) HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURT, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER.
EACH OF
THE COMPANY AND THE INVESTOR CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY MAILING A COPY THEREOF TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF.
NOTHING
IN THIS SECTION 10.12 SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
SECTION 10.13
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE INVESTOR CONTAINED IN ARTICLES IV AND V AND THE COVENANTS CONTAINED IN
ARTICLE V AND ARTICLE VI SHALL SURVIVE THE EXECUTION AND DELIVERY HEREOF AND THE
CLOSING UNTIL THE TERMINATION OF THIS
31
AGREEMENT, AND THE AGREEMENTS AND COVENANTS SET FORTH IN ARTICLE VIII AND
ARTICLE IX OF THIS AGREEMENT SHALL SURVIVE THE EXECUTION AND DELIVERY HEREOF AND
THE CLOSING HEREUNDER.
SECTION 10.14
PUBLICITY.
EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW OR
REGULATION, OR NASDAQ RULE OR JUDICIAL PROCESS, PRIOR TO THE CLOSING, NEITHER
THE COMPANY NOR THE INVESTOR SHALL ISSUE ANY PRESS RELEASE OR OTHERWISE MAKE ANY
PUBLIC STATEMENT OR ANNOUNCEMENT WITH RESPECT TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE EXISTENCE OF THIS AGREEMENT.
IN THE
EVENT THE COMPANY IS REQUIRED BY LAW, REGULATION, NASDAQ RULE OR