to
it thereafter.
The representations and warranties and the agreements and
covenants of the Company and the Safeguard Entities contained herein shall
survive the Closing.
(d)
Counterparts.
This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement, it being understood
that all parties need not sign the same counterpart.
(e)
Entire Agreement.
This Agreement, together with the Loan Agreement and the
agreements and documents contemplated hereby and thereby, contains the entire
understanding and agreement of the parties hereto and supersedes any prior
understandings, agreements, or representations by or among the parties hereto,
written or oral, including, without limitation, (i) each of the agreements
listed on Exhibit A-1 hereto (which agreements shall be of no further force and
effect after the date hereof) and (ii) the applicable provisions for the
granting of registration rights contained in the agreements listed on
Exhibit A-2 hereto (which provisions shall be of no further force and effect
after the date hereof), and may not be modified, amended or terminated except by
a written agreement signed by both parties.
Without limiting the generality of
the foregoing, each Safeguard Entity acknowledges and agrees that it waives any
right it may have to receive liquidated damages (or any other damages) and any
other remedies available to it under any of the agreements listed on Exhibit A-1
or A-2 (whether accruing prior to, on or after the date hereof) as a result of
the Company's failure to date to maintain the effectiveness of registration
statements covering the Registrable Securities thereunder.
(f)
Jurisdiction.
THE COMPANY AND EACH SAFEGUARD ENTITY (I) HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT,
COURTS OF THE STATE OF DELAWARE AND OTHER COURTS OF THE UNITED STATES SITTING IN
NEW CASTLE COUNTY, DELAWARE FOR THE PURPOSES OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND (II) HEREBY WAIVES, AND AGREES
NOT TO ASSERT IN ANY SUCH SUIT ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER.
THE COMPANY AND EACH SAFEGUARD ENTITY
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT
UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND
SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF.
NOTHING IN THIS PARAGRAPH
SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW.
(g)
Governing Law.
THIS AGREEMENT AND THE VALIDITY AND PERFORMANCE OF THE TERMS
HEREOF SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO
BE PERFORMED ENTIRELY IN SUCH STATE.
(h)
Jury Trial.
EACH PARTY