OR SCHEDULES
ATTACHED HERETO OR ANY RELATED AGREEMENT; OR (II) ANY BREACH OR DEFAULT IN
PERFORMANCE BY THE PURCHASER OF ANY COVENANT OR UNDERTAKING TO BE PERFORMED BY
THE PURCHASER HEREUNDER, OR ANY OTHER AGREEMENT ENTERED INTO BY THE COMPANY AND
THE PURCHASER RELATING HERETO.
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9.
THIS SECTION INTENTIALLY OMITTED.
10.
REGISTRATION RIGHTS.
10.1
REGISTRATION RIGHTS GRANTED.
THE COMPANY HEREBY
GRANTS REGISTRATION RIGHTS TO THE PURCHASER PURSUANT TO THE REGISTRATION RIGHTS
AGREEMENT.
10.2
OFFERING RESTRICTIONS.
EXCEPT AS PREVIOUSLY
DISCLOSED IN THE SEC REPORTS OR IN THE EXCHANGE ACT FILINGS, OR STOCK OR STOCK
OPTIONS GRANTED TO EMPLOYEES OR DIRECTORS OF THE COMPANY (THESE EXCEPTIONS
HEREINAFTER REFERRED TO AS THE "EXCEPTED ISSUANCES"), NEITHER THE COMPANY NOR
ANY OF ITS SUBSIDIARIES WILL, PRIOR TO THE FULL EXERCISE BY PURCHASER OF THE
WARRANTS, (X) ENTER INTO ANY EQUITY LINE OF CREDIT AGREEMENT OR SIMILAR
AGREEMENT OR (Y) ISSUE, OR ENTER INTO ANY AGREEMENT TO ISSUE, ANY SECURITIES
WITH A VARIABLE/FLOATING CONVERSION AND/OR PRICING FEATURE WHICH ARE OR COULD BE
(BY CONVERSION OR REGISTRATION) FREE-TRADING SECURITIES (I.E.
COMMON STOCK
SUBJECT TO A REGISTRATION STATEMENT).
11.
MISCELLANEOUS.
11.1
GOVERNING LAW, JURISDICTION AND WAIVER OF JURY
TRIAL.
(A)
THIS AGREEMENT AND THE OTHER RELATED
AGREEMENTS SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(B)
THE COMPANY HEREBY CONSENTS AND AGREES THAT
THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK
SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THE COMPANY, ON THE ONE HAND, AND THE PURCHASER, ON THE OTHER HAND,
PERTAINING TO THIS AGREEMENT OR ANY OF THE RELATED AGREEMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE OTHER RELATED
AGREEMENTS; PROVIDED, THAT THE PURCHASER AND THE COMPANY ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE
COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER PROVIDED, THAT, NOTHING IN
THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE PURCHASER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT
THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL (AS DEFINED IN THE MASTER SECURITY
AGREEMENT) OR ANY OTHER SECURITY FOR THE OBLIGATIONS (AS DEFINED IN THE MASTER
SECURITY AGREEMENT), OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
THE PURCHASER.
THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED
24
IN ANY SUCH COURT, AND THE COMPANY HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS.
THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS