DAY OR LATER THAN 6:30 P.M. (NEW
YORK CITY TIME) ON ANY TRADING DAY, (C) THE TRADING DAY FOLLOWING THE DATE OF
DEPOSIT WITH A NATIONALLY RECOGNIZED OVERNIGHT COURIER SERVICE, OR (D) UPON
ACTUAL RECEIPT BY THE PARTY TO WHOM SUCH NOTICE IS REQUIRED TO BE GIVEN.
THE
ADDRESSES AND FACSIMILE NUMBERS FOR SUCH NOTICES AND COMMUNICATIONS ARE THOSE
SET FORTH ON THE SIGNATURE PAGES HEREOF, OR SUCH OTHER ADDRESS OR FACSIMILE
NUMBER AS MAY BE DESIGNATED IN WRITING HEREAFTER, IN THE SAME MANNER, BY ANY
SUCH PERSON.
18
6.5
AMENDMENTS; WAIVERS.
ANY TERM OF THIS AGREEMENT MAY BE AMENDED AND THE
OBSERVANCE OF ANY TERM OF THIS AGREEMENT MAY BE WAIVED (EITHER GENERALLY OR IN A
PARTICULAR INSTANCE AND EITHER RETROACTIVELY OR PROSPECTIVELY), WITH THE WRITTEN
CONSENT OF THE COMPANY AND THE INVESTORS HOLDING A MAJORITY OF THE PRINCIPAL
AMOUNT OF THE CONVERTIBLE NOTES.
SUBJECT TO THE PRECEDING SENTENCE, ANY
AMENDMENT OR WAIVER EFFECTED IN ACCORDANCE WITH THIS SECTION SHALL BE BINDING
UPON ALL PARTIES TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INVESTORS
WHO MAY NOT HAVE EXECUTED SUCH AMENDMENT OR WAIVER.
6.6
CONSTRUCTION.
THE HEADINGS HEREIN ARE FOR CONVENIENCE ONLY, DO NOT
CONSTITUTE A PART OF THIS AGREEMENT AND SHALL NOT BE DEEMED TO LIMIT OR AFFECT
ANY OF THE PROVISIONS HEREOF.
THE LANGUAGE USED IN THIS AGREEMENT WILL BE
DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL INTENT,
AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
6.7
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE PARTIES AND THEIR SUCCESSORS AND PERMITTED ASSIGNS.
THE
COMPANY MAY NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF THE INVESTORS.
ANY INVESTOR MAY ASSIGN ITS
RIGHTS UNDER THIS AGREEMENT TO ANY PERSON TO WHOM SUCH INVESTOR ASSIGNS OR
TRANSFERS ANY SECURITIES, PROVIDED SUCH TRANSFEREE AGREES IN WRITING TO BE
BOUND, WITH RESPECT TO THE TRANSFERRED SECURITIES, BY THE PROVISIONS HEREOF THAT
APPLY TO THE "INVESTORS."
6.8
GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
THE CORPORATE LAWS OF THE
STATE OF NEW YORK SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE
COMPANY AND ITS STOCKHOLDERS.
ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
THE COMPANY AND INVESTORS HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY
OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE
ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVE,
AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY
OR ANY INVESTOR, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION
OF