BE
REFORMED, CONSTRUED AND ENFORCED IN SUCH JURISDICTION AS IF SUCH INVALID,
ILLEGAL OR UNENFORCEABLE PROVISION HAD NEVER BEEN CONTAINED HEREIN.
(C)
COMPLETE AGREEMENT.
THE RESTATED SECURITIES PURCHASE AGREEMENT IS
AMENDED, RESTATED AND SUPERSEDED BY THIS AGREEMENT IN ITS ENTIRETY; PROVIDED
THAT, NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE TO THE CONTRARY IN THIS
AGREEMENT, NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM ANY LIABILITY FOR ANY
BREACH PRIOR TO THE DATE HEREOF OF THE RESTATED SECURITIES PURCHASE AGREEMENT OR
ANY BREACH PRIOR TO APRIL 13, 2006 OF THE ORIGINAL SECURITIES PURCHASE
AGREEMENT, AND ANY PROVISION SO BREACHED SHALL NOT BE SUPERSEDED BY THIS
AGREEMENT FOR PURPOSES OF ACTIONS TAKEN IN CONNECTION WITH SUCH BREACH AND
LIABILITIES RELATED THERETO AND THE RIGHTS OF THE PARTIES HERETO UNDER
SECTION 1(E) OF EACH OF THE ORIGINAL SECURITIES PURCHASE AGREEMENT AND THE
RESTATED SECURITIES PURCHASE AGREEMENT SHALL SURVIVE THIS AMENDMENT AND
RESTATEMENT.
THIS AGREEMENT AND THOSE DOCUMENTS EXPRESSLY REFERRED TO HEREIN
EMBODY THE COMPLETE AGREEMENT AND UNDERSTANDING AMONG THE PARTIES AND SUPERSEDE
AND PREEMPT ANY PRIOR UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS BY OR AMONG
THE PARTIES, WRITTEN OR ORAL, WHICH MAY HAVE RELATED TO THE SUBJECT MATTER
HEREOF IN ANY WAY.
(D)
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT SHALL
BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES HERETO TO EXPRESS THEIR
MUTUAL INTENT, AND NO RULE OF STRICT CONSTRUCTION SHALL BE APPLIED AGAINST ANY
PARTY.
(E)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN SEPARATE
COUNTERPARTS (INCLUDING BY MEANS OF FACSIMILE), EACH OF WHICH IS DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER CONSTITUTE ONE AND THE SAME AGREEMENT.
(F)
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE PROVIDED HEREIN,
THIS AGREEMENT SHALL BIND AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY
PURCHASER, THE COMPANY, THE INVESTORS AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS (INCLUDING SUBSEQUENT HOLDERS OF SECURITIES); PROVIDED THAT THE RIGHTS
AND OBLIGATIONS OF PURCHASER UNDER THIS AGREEMENT SHALL NOT BE ASSIGNABLE EXCEPT
IN CONNECTION WITH A PERMITTED TRANSFER OF SECURITIES HEREUNDER.
(G)
CHOICE OF LAW.
THE LAW OF THE STATE OF DELAWARE WILL GOVERN ALL
QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
SECURITYHOLDERS.
ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE,
16
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR
RULE (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.
(H)
MUTUAL WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE