the Company and the
Investor any legal or equitable right, remedy or cause under this Note. This
Note shall inure to the sole and exclusive benefit of the Company and the
Investor.
(C)
GOVERNING LAW; VENUE; WAIVER OF JULY TRIAL.
ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
EACH PARTY AGREES THAT ALL ACTIONS CONCERNING THE INTERPRETATIONS,
ENFORCEMENT AND DEFENSE OF THE TRANSACTIONS CONTEMPLATED BY THIS NOTE AND ANY
OTHER TRANSACTION DOCUMENTS (WHETHER BROUGHT AGAINST A PARTY HERETO OR ITS
RESPECTIVE AFFILIATES, EMPLOYEES OR AGENTS) SHALL BE COMMENCED EXCLUSIVELY IN
THE NEW YORK COURTS.
EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE NEW YORK COURTS FOR ANY ACTION OR ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE
ENFORCEMENT OF THE ANY OF THIS NOTE), AND HEREBY IRREVOCABLY WAIVES, AND AGREES
NOT TO ASSERT IN ANY ACTION, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF ANY SUCH NEW YORK COURT OR THAT SUCH ACTION HAS BEEN COMMENCED
IN AN IMPROPER OR INCONVENIENT FORUM.
EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH ACTION BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR
OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS NOTE AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF.
NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL ACTION.
(d)
The headings herein are for convenience only, do not constitute a
part of this Note and shall not be deemed to limit or affect any of the
provisions hereof.
9
EXHIBIT 10.68
(e)
In case any one or more of the provisions of this Note shall be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Note shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Note.
(f)
No provision of this Note may be waived or amended except (i) in
accordance with the requirements set forth in the Purchase Agreement, and (ii)
in a written instrument signed, in the case of an amendment, by the Company and
the Investor or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No