9.4
INDEPENDENT NATURE OF INVESTORS' OBLIGATIONS
AND RIGHTS.
THE OBLIGATIONS OF EACH INVESTOR UNDER ANY TRANSACTION DOCUMENT ARE
SEVERAL AND NOT JOINT WITH THE OBLIGATIONS OF ANY OTHER INVESTOR, AND NO
INVESTOR SHALL BE RESPONSIBLE IN ANY WAY FOR THE PERFORMANCE OF THE OBLIGATIONS
OF ANY OTHER INVESTOR UNDER ANY TRANSACTION DOCUMENT. THE DECISION OF EACH
INVESTOR TO PURCHASE COMMON SHARES PURSUANT TO THE TRANSACTION DOCUMENTS HAS
BEEN MADE BY SUCH INVESTOR INDEPENDENTLY OF ANY OTHER INVESTOR. NOTHING
CONTAINED HEREIN OR IN ANY TRANSACTION DOCUMENT, AND NO ACTION TAKEN BY ANY
INVESTOR PURSUANT THERETO, SHALL BE DEEMED TO CONSTITUTE THE INVESTORS AS A
PARTNERSHIP, AN ASSOCIATION, A JOINT VENTURE OR ANY OTHER KIND OF ENTITY, OR
CREATE A PRESUMPTION THAT THE INVESTORS ARE IN ANY WAY ACTING IN CONCERT OR AS A
GROUP WITH RESPECT TO SUCH OBLIGATIONS OR THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENT. EACH INVESTOR ACKNOWLEDGES THAT NO OTHER INVESTOR HAS
ACTED AS AGENT FOR SUCH INVESTOR IN CONNECTION WITH MAKING ITS INVESTMENT
HEREUNDER AND THAT NO INVESTOR WILL BE ACTING AS AGENT OF SUCH INVESTOR IN
CONNECTION WITH MONITORING ITS INVESTMENT IN THE COMMON SHARES OR ENFORCING ITS
RIGHTS UNDER THE TRANSACTION DOCUMENTS.
EACH INVESTOR SHALL BE ENTITLED TO
INDEPENDENTLY PROTECT AND ENFORCE ITS RIGHTS, INCLUDING WITHOUT LIMITATION THE
RIGHTS ARISING OUT OF THIS AGREEMENT OR OUT OF THE OTHER TRANSACTION DOCUMENTS,
AND IT SHALL NOT BE NECESSARY FOR ANY OTHER INVESTOR TO BE JOINED AS AN
ADDITIONAL PARTY IN ANY PROCEEDING FOR SUCH PURPOSE. THE COMPANY ACKNOWLEDGES
THAT EACH OF THE INVESTORS HAS BEEN PROVIDED WITH THE SAME TRANSACTION DOCUMENTS
FOR THE PURPOSE OF CLOSING A TRANSACTION WITH MULTIPLE INVESTORS AND NOT BECAUSE
IT WAS REQUIRED OR REQUESTED TO DO SO BY ANY INVESTOR.
9.5
HEADINGS.
THE HEADINGS OF THIS AGREEMENT
ARE FOR CONVENIENCE OF REFERENCE ONLY, ARE NOT PART OF THIS AGREEMENT AND DO NOT
AFFECT ITS INTERPRETATION.
9.6
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT IS INVALID OR UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF
LAW, THEN SUCH PROVISION WILL BE DEEMED MODIFIED IN ORDER TO CONFORM WITH SUCH
STATUTE OR RULE OF LAW.
ANY PROVISION HEREOF THAT MAY PROVE INVALID OR
UNENFORCEABLE UNDER ANY LAW WILL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION HEREOF.
9.7
ENTIRE AGREEMENT.
THE TRANSACTION
DOCUMENTS, TOGETHER WITH THE EXHIBITS AND SCHEDULES THERETO, CONTAIN THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, WITH RESPECT
TO SUCH MATTERS, WHICH THE PARTIES ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH
DOCUMENTS, EXHIBITS AND SCHEDULES.
9.8
AMENDMENTS; WAIVERS. NO PROVISION OF THIS
AGREEMENT MAY BE WAIVED OR AMENDED EXCEPT IN A WRITTEN INSTRUMENT SIGNED, IN THE
CASE OF AN AMENDMENT, BY THE COMPANY AND THE INVESTORS OR, IN THE CASE OF A
WAIVER, BY THE PARTY AGAINST WHOM ENFORCEMENT OF ANY SUCH WAIVER IS
22
SOUGHT. NO WAIVER OF ANY DEFAULT WITH RESPECT TO ANY PROVISION, CONDITION OR
REQUIREMENT OF THIS AGREEMENT SHALL