INVESTOR OR THE COMPANY IN THE EVENT THAT ANY
GOVERNMENTAL ENTITY SHALL HAVE ISSUED AN ORDER, DECREE OR RULING OR TAKEN ANY
OTHER ACTION RESTRAINING, ENJOINING OR OTHERWISE PROHIBITING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND SUCH ORDER, DECREE, RULING OR OTHER ACTION
SHALL HAVE BECOME FINAL AND NONAPPEALABLE; OR
(C)
BY THE MUTUAL WRITTEN CONSENT OF THE INVESTOR AND THE COMPANY.
In the event of termination of this Agreement as provided in this Section 5.1,
this Agreement shall forthwith become void and there shall be no liability on
the part of either party hereto except that nothing herein shall relieve either
party from liability for any breach of this Agreement.
5.2
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL COVENANTS AND
AGREEMENTS, OTHER THAN THOSE WHICH BY THEIR TERMS APPLY IN WHOLE OR IN PART
AFTER THE CLOSING, SHALL TERMINATE AS OF THE CLOSING. THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY MADE HEREIN OR IN ANY CERTIFICATES DELIVERED IN
CONNECTION WITH THE CLOSING SHALL SURVIVE THE CLOSING WITHOUT LIMITATION.
5.3
AMENDMENT.
NO AMENDMENT OF ANY PROVISION OF THIS AGREEMENT WILL
BE EFFECTIVE UNLESS MADE IN WRITING AND SIGNED BY AN OFFICER OR A DULY
AUTHORIZED REPRESENTATIVE OF EACH PARTY; PROVIDED THAT THE INVESTOR MAY
UNILATERALLY AMEND ANY PROVISION OF THIS AGREEMENT TO THE EXTENT REQUIRED TO
COMPLY WITH ANY CHANGES AFTER THE SIGNING DATE IN APPLICABLE FEDERAL STATUTES.
NO FAILURE OR DELAY BY ANY PARTY IN EXERCISING ANY RIGHT, POWER OR PRIVILEGE
HEREUNDER SHALL OPERATE AS A WAIVER THEREOF NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE OF ANY OTHER RIGHT,
POWER OR PRIVILEGE.
THE RIGHTS AND REMEDIES HEREIN PROVIDED SHALL BE CUMULATIVE
OF ANY RIGHTS OR REMEDIES PROVIDED BY LAW.
5.4
WAIVER OF CONDITIONS. THE CONDITIONS TO EACH PARTY'S OBLIGATION TO
CONSUMMATE THE PURCHASE ARE FOR THE SOLE BENEFIT OF SUCH PARTY AND MAY BE WAIVED
BY SUCH PARTY IN WHOLE OR IN PART TO THE EXTENT PERMITTED BY APPLICABLE LAW. NO
WAIVER WILL BE EFFECTIVE UNLESS IT IS IN A WRITING SIGNED BY A DULY AUTHORIZED
OFFICER OF THE WAIVING PARTY THAT MAKES EXPRESS REFERENCE TO THE PROVISION OR
PROVISIONS SUBJECT TO SUCH WAIVER.
5.5
GOVERNING LAW: SUBMISSION TO JURISDICTION, ETC. THIS AGREEMENT WILL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED
STATES IF AND TO THE EXTENT SUCH LAW IS APPLICABLE, AND OTHERWISE IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HERETO AGREES (A) TO
SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA AND THE UNITED STATES COURT OF FEDERAL CLAIMS
FOR ANY AND ALL CIVIL ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, AND
34
(B) THAT NOTICE MAY BE SERVED UPON (I) THE COMPANY AT THE ADDRESS AND IN THE