PURSUANT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR UNDER THE AGREEMENTS OR
INSTRUMENTS TO BE ENTERED INTO OR FILED IN CONNECTION HEREWITH, INCLUDING THE
REGISTRATION RIGHTS AGREEMENT AND THE WARRANTS.
9.17
"PREFERRED STOCK" HAS THE MEANING SET FORTH IN SECTION 3.3.
9.18
"REGISTRATION RIGHTS AGREEMENT" MEANS THE REGISTRATION RIGHTS
AGREEMENT, DATED AS OF THE DATE OF THIS AGREEMENT AND AMONG THE PARTIES TO THIS
AGREEMENT, IN THE FORM ATTACHED HERETO AS EXHIBIT C.
9.19
"REGULATION D" MEANS REGULATION D AS PROMULGATED BY THE SEC UNDER
THE SECURITIES ACT.
9.20
"RULE 144" AND "RULE 144(K)" MEAN RULE 144 AND RULE 144(K),
RESPECTIVELY, PROMULGATED UNDER THE SECURITIES ACT, OR ANY SUCCESSOR RULE.
9.21
"SEC" MEANS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
9.22
"SECOND CLOSING DATE" HAS THE MEANING SET FORTH IN SECTION 1.3.
9.23
"SECURITIES" HAS THE MEANING SET FORTH IN THE RECITALS.
9.24
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED, AND
THE RULES AND REGULATIONS THEREUNDER, OR ANY SIMILAR SUCCESSOR STATUTE.
9.25
"SIGNIFICANT SUBSIDIARY" HAS THE MEANING SET FORTH IN SECTION 3.18.
9.26
"SUBSIDIARY" MEANS A CORPORATION OR OTHER BUSINESS ENTITY IN WHICH
THE COMPANY CONTROLS, EITHER DIRECTLY OR INDIRECTLY, AT LEAST 50% OF THE VOTING
POWER AND WHICH MEETS THE TEST OF A SIGNIFICANT SUBSIDIARY AS DEFINED IN
RULE 1-02(W) OF REGULATION S-X PROMULGATED UNDER THE EXCHANGE ACT.
9.27
"WARRANTS" HAS THE MEANING SET FORTH IN THE RECITALS.
9.28
"WARRANT SHARES" MEANS THE NUMBER OF SHARES OF COMMON STOCK
PURCHASEABLE BY THE WARRANTS.
ARTICLE X
GOVERNING LAW; MISCELLANEOUS
10.1
GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER.
THIS AGREEMENT
WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
THE PARTIES
HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES FEDERAL
AND STATE COURTS LOCATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA WITH
RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY HEREBY
15
IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY.
10.2
COUNTERPARTS; SIGNATURES BY FACSIMILE.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, ALL OF WHICH ARE CONSIDERED ONE AND THE
SAME AGREEMENT AND WILL BECOME EFFECTIVE WHEN COUNTERPARTS HAVE BEEN SIGNED BY
EACH PARTY AND DELIVERED TO THE OTHER PARTIES.
THIS AGREEMENT, ONCE EXECUTED BY
A PARTY, MAY BE DELIVERED TO THE OTHER PARTIES HERETO BY FACSIMILE TRANSMISSION
OF A COPY OF THIS AGREEMENT BEARING THE SIGNATURE OF THE PARTY SO DELIVERING
THIS AGREEMENT.
10.3
HEADINGS.
THE HEADINGS OF THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY, ARE NOT PART OF THIS AGREEMENT AND DO NOT AFFECT ITS
INTERPRETATION.
10.4
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS INVALID OR
UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH PROVISION