AND UNDERSTANDINGS (WHETHER ORAL OR WRITTEN) BY OR
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING ANY
LETTER OF INTENT, EXCLUSIVITY AGREEMENT, TERM SHEET OR MEMORANDUM OF TERMS
ENTERED INTO OR EXCHANGED BY THE PARTIES.
10.8
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT SHALL HEREAFTER
BE HELD TO BE INVALID, UNENFORCEABLE OR ILLEGAL, IN WHOLE OR IN PART, IN ANY
JURISDICTION UNDER ANY CIRCUMSTANCES FOR ANY REASON: (A) SUCH PROVISION SHALL BE
REFORMED TO THE MINIMUM EXTENT NECESSARY TO CAUSE SUCH PROVISION TO BE VALID,
ENFORCEABLE AND LEGAL WHILE PRESERVING THE INTENT OF THE PARTIES AS EXPRESSED
IN, AND THE BENEFITS TO SUCH PARTIES PROVIDED BY, SUCH PROVISION OR (B) IF SUCH
PROVISION CANNOT BE SO REFORMED, SUCH PROVISION SHALL BE SEVERED FROM THIS
AGREEMENT AND AN EQUITABLE ADJUSTMENT SHALL BE MADE TO THIS AGREEMENT (INCLUDING
ADDITION OF NECESSARY FURTHER PROVISIONS TO THIS AGREEMENT) SO AS TO GIVE EFFECT
TO THE INTENT AS SO EXPRESSED AND THE BENEFITS SO PROVIDED.
SUCH HOLDING SHALL
NOT AFFECT OR IMPAIR THE VALIDITY, ENFORCEABILITY OR LEGALITY OF SUCH PROVISION
IN ANY OTHER JURISDICTION OR UNDER ANY OTHER CIRCUMSTANCES.
NEITHER SUCH
HOLDING NOR SUCH REFORMATION OR SEVERANCE SHALL AFFECT OR IMPAIR THE LEGALITY,
VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT.
10.9
HEADINGS.
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR
PURPOSES OF CONVENIENCE ONLY AND SHALL NOT AFFECT THE MEANING OR INTERPRETATION
OF THIS AGREEMENT.
10.10
COUNTERPARTS.
THIS AGREEMENT MAY BE SIGNED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH (WHEN EXECUTED AND DELIVERED) SHALL CONSTITUTE AN
ORIGINAL INSTRUMENT, BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT, RESPECTIVELY.
THIS AGREEMENT SHALL BECOME EFFECTIVE AND BE DEEMED
TO HAVE BEEN EXECUTED AND DELIVERED BY EACH OF THE PARTIES AT SUCH TIME AS
COUNTERPARTS HERETO SHALL HAVE BEEN EXECUTED AND DELIVERED BY ALL OF PARTIES,
REGARDLESS OF WHETHER ALL OF THE PARTIES HAVE EXECUTED THE SAME COUNTERPART.
COUNTERPARTS MAY BE DELIVERED VIA FACSIMILE OR OTHER ELECTRONIC TRANSMISSION AND
ANY COUNTERPART SO DELIVERED SHALL BE DEEMED TO HAVE BEEN DULY AND VALIDLY
DELIVERED AND BE VALID AND EFFECTIVE FOR ALL PURPOSES.
10.11
GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED, PERFORMED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION (WHETHER OF THE STATE OF
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
78
10.12
CONSENT TO JURISDICTION, ETC.
(A)
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE
DELAWARE CHANCERY COURT AND ANY APPELLATE COURT THEREFROM OR THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND ANY APPELLATE COURT THEREFROM
(THE "DELAWARE COURTS"), IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT RELATING THERETO, AND EACH OF THE PARTIES HERETO