PERFORMED IN THE STATE OF DELAWARE.
THE COMPANY AND EACH INVESTOR IRREVOCABLY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES FEDERAL COURTS AND THE STATE
COURTS LOCATED IN THE STATE OF DELAWARE IN ANY SUIT OR PROCEEDING BASED ON OR
ARISING UNDER THIS AGREEMENT AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH SUIT OR PROCEEDING MAY BE DETERMINED IN SUCH COURTS. THE COMPANY AND
EACH INVESTOR IRREVOCABLY WAIVES THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING.
THE PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON THE OTHER PARTY, MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH PARTY IN ANY SUCH SUIT OR
PROCEEDING.
NOTHING HEREIN SHALL AFFECT THE PARTIES' RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW.
EACH PARTY AGREES THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER.
13
(E)
THIS AGREEMENT AND THE SECURITIES PURCHASE AGREEMENT (INCLUDING
ALL SCHEDULES AND EXHIBITS THERETO) CONSTITUTE THE ENTIRE AGREEMENT AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF.
THERE ARE
NO RESTRICTIONS, PROMISES, WARRANTIES OR UNDERTAKINGS, OTHER THAN THOSE SET
FORTH OR REFERRED TO HEREIN AND THEREIN.
THIS AGREEMENT AND THE SECURITIES
PURCHASE AGREEMENT SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF.
(F)
SUBJECT TO THE REQUIREMENTS OF SECTION 9 HEREOF, THIS AGREEMENT
SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF
EACH OF THE PARTIES HERETO.
(G)
THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE
ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE MEANING HEREOF.
(H)
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE COUNTERPARTS, EACH
OF WHICH SHALL BE DEEMED AN ORIGINAL BUT ALL OF WHICH SHALL CONSTITUTE ONE AND
THE SAME AGREEMENT.
THIS AGREEMENT, ONCE EXECUTED BY A PARTY, MAY BE DELIVERED
TO THE OTHER PARTY HERETO BY FACSIMILE TRANSMISSION OF A COPY OF THIS AGREEMENT
BEARING THE SIGNATURE OF THE PARTY SO DELIVERING THIS AGREEMENT.
(I)
EACH PARTY SHALL DO AND PERFORM, OR CAUSE TO BE DONE AND
PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND SHALL EXECUTE AND DELIVER ALL
SUCH OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND DOCUMENTS, AS THE OTHER
PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND ACCOMPLISH THE
PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
(J)
ALL CONSENTS, APPROVALS AND OTHER DETERMINATIONS TO BE MADE BY
THE INVESTORS PURSUANT TO THIS AGREEMENT SHALL BE MADE BY THE INVESTORS HOLDING
A MAJORITY IN INTEREST OF THE REGISTRABLE SECURITIES HELD BY ALL INVESTORS.
(K)
THE INITIAL NUMBER OF REGISTRABLE SECURITIES INCLUDED ON ANY
REGISTRATION STATEMENT AND EACH INCREASE TO THE NUMBER OF REGISTRABLE SECURITIES
INCLUDED THEREON SHALL BE ALLOCATED PRO RATA AMONG THE INVESTORS BASED ON THE
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