ATTACHED HERETO AS EXHIBIT D.
9.18
"REGULATION D" MEANS REGULATION D AS PROMULGATED UNDER BY THE SEC
UNDER THE SECURITIES ACT.
9.19
"RULE 144" AND "RULE 144(K)" MEAN RULE 144 AND RULE 144(K),
RESPECTIVELY, PROMULGATED UNDER THE SECURITIES ACT, OR ANY SUCCESSOR RULE.
9.20
"SEC" MEANS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
9.21
"SEC REPORTS" HAS THE MEANING SET FORTH IN SECTION 3.6.
9.22
"SECURITIES" HAS THE MEANING SET FORTH IN THE RECITALS.
9.23
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED, AND
THE RULES AND REGULATIONS THEREUNDER, OR ANY SIMILAR SUCCESSOR STATUTE.
9.24
"SIGNIFICANT SUBSIDIARIES" HAS THE MEANING SET FORTH IN SECTION
3.18.
9.25
"SUBSIDIARY" MEANS A CORPORATION OR OTHER BUSINESS ENTITY IN WHICH
THE COMPANY CONTROLS, EITHER DIRECTLY OR INDIRECTLY, AT LEAST 50% OF THE VOTING
POWER AND WHICH MEETS THE TEST OF A SIGNIFICANT SUBSIDIARY AS DEFINED IN RULE
1-02(W) OF REGULATION S-X PROMULGATED UNDER THE EXCHANGE ACT.
9.26
"WARRANTS" HAS THE MEANING SET FORTH IN THE RECITALS.
9.27
"WARRANT SHARES" MEANS THE NUMBER OF SHARES OF COMMON STOCK
PURCHASEABLE BY THE WARRANTS.
ARTICLE X
GOVERNING LAW; MISCELLANEOUS
10.1
GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER.
THIS AGREEMENT
WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
THE PARTIES
HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL
AND STATE COURTS LOCATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA WITH
RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY.
16
10.2
COUNTERPARTS; SIGNATURES BY FACSIMILE.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, ALL OF WHICH ARE CONSIDERED ONE AND THE
SAME AGREEMENT AND WILL BECOME EFFECTIVE WHEN COUNTERPARTS HAVE BEEN SIGNED BY
EACH PARTY AND DELIVERED TO THE OTHER PARTIES.
THIS AGREEMENT, ONCE EXECUTED BY
A PARTY, MAY BE DELIVERED TO THE OTHER PARTIES HERETO BY FACSIMILE TRANSMISSION
OF A COPY OF THIS AGREEMENT BEARING THE SIGNATURE OF THE PARTY SO DELIVERING
THIS AGREEMENT.
10.3
HEADINGS.
THE HEADINGS OF THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY, ARE NOT PART OF THIS AGREEMENT AND DO NOT AFFECT ITS
INTERPRETATION.
10.4
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS INVALID OR
UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH PROVISION
WILL BE DEEMED MODIFIED IN ORDER TO CONFORM WITH SUCH STATUTE OR RULE OF LAW.
ANY PROVISION HEREOF THAT MAY PROVE INVALID OR UNENFORCEABLE UNDER ANY LAW WILL
NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION HEREOF.
10.5
ENTIRE AGREEMENT; AMENDMENTS.
THIS AGREEMENT AND THE REGISTRATION
RIGHTS AGREEMENT (INCLUDING ALL SCHEDULES AND EXHIBITS THERETO) AND THE WARRANTS
CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT