ANY WAIVER, PERMIT, CONSENT OR
APPROVAL OF ANY KIND OR CHARACTER ON THE PURCHASER'S PART OF ANY BREACH, DEFAULT
OR NONCOMPLIANCE UNDER THIS AGREEMENT, THE PREFERRED STOCK OR THE RELATED
AGREEMENTS OR ANY WAIVER ON SUCH PARTY'S PART OF ANY PROVISIONS OR CONDITIONS OF
THE AGREEMENT, THE CERTIFICATE OF VOTE OF DIRECTORS OR THE RELATED AGREEMENTS
MUST BE IN WRITING AND SHALL BE EFFECTIVE ONLY TO THE
25
EXTENT SPECIFICALLY SET FORTH IN SUCH WRITING.
ALL REMEDIES, EITHER UNDER THIS
AGREEMENT, THE PREFERRED STOCK OR THE RELATED AGREEMENTS, BY LAW OR OTHERWISE
AFFORDED TO ANY PARTY, SHALL BE CUMULATIVE AND NOT ALTERNATIVE.
12.8
NOTICES.
ALL NOTICES REQUIRED OR PERMITTED HEREUNDER SHALL BE IN
WRITING AND SHALL BE DEEMED EFFECTIVELY GIVEN: (A) UPON PERSONAL DELIVERY TO THE
PARTY TO BE NOTIFIED, (B) WHEN SENT BY CONFIRMED TELEX OR FACSIMILE IF SENT
DURING NORMAL BUSINESS HOURS OF THE RECIPIENT, IF NOT, THEN ON THE NEXT BUSINESS
DAY, (C) FIVE DAYS AFTER HAVING BEEN SENT BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, OR (D) ONE DAY AFTER DEPOSIT WITH A
NATIONALLY RECOGNIZED OVERNIGHT COURIER, SPECIFYING NEXT DAY DELIVERY, WITH
WRITTEN VERIFICATION OF RECEIPT.
ALL COMMUNICATIONS SHALL BE SENT TO THE
COMPANY AT THE ADDRESS AS SET FORTH ON THE SIGNATURE PAGE HEREOF, WITH A COPY TO
ELLENOFF GROSSMAN AND SCHOLE LLP, 370 LEXINGTON AVENUE NEW YORK, NEW YORK 10017
ATTENTION: BARRY I. GROSSMAN, ESQ. FACSIMILE NUMBER (212) 370-7889 AND TO THE
PURCHASER AT THE ADDRESS SET FORTH ON THE SIGNATURE PAGE HERETO FOR SUCH
PURCHASER, WITH A COPY IN THE CASE OF THE PURCHASER TO JOHN TUCKER, ESQ., 152
WEST 57TH STREET, 4TH FLOOR, NEW YORK, NY 10019, FACSIMILE NUMBER (212)
541-4434, OR AT SUCH OTHER ADDRESS AS THE COMPANY OR THE PURCHASER MAY DESIGNATE
BY TEN DAYS ADVANCE WRITTEN NOTICE TO THE OTHER PARTIES HERETO.
12.9
ATTORNEYS' FEES.
IN THE EVENT THAT ANY SUIT OR ACTION IS INSTITUTED
TO ENFORCE ANY PROVISION IN THIS AGREEMENT, THE PREVAILING PARTY IN SUCH DISPUTE
SHALL BE ENTITLED TO RECOVER FROM THE LOSING PARTY ALL FEES, COSTS AND EXPENSES
OF ENFORCING ANY RIGHT OF SUCH PREVAILING PARTY UNDER OR WITH RESPECT TO THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, SUCH REASONABLE FEES AND EXPENSES OF
ATTORNEYS AND ACCOUNTANTS, WHICH SHALL INCLUDE, WITHOUT LIMITATION, ALL FEES,
COSTS AND EXPENSES OF APPEALS.
12.10
TITLES AND SUBTITLES.
THE TITLES OF THE SECTIONS AND SUBSECTIONS OF
THE AGREEMENT ARE FOR CONVENIENCE OF REFERENCE ONLY AND ARE NOT TO BE CONSIDERED
IN CONSTRUING THIS AGREEMENT.
12.11
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL, BUT ALL OF WHICH TOGETHER
SHALL CONSTITUTE ONE INSTRUMENT.
12.12
BROKER'S FEES.
EACH PARTY HERETO REPRESENTS AND WARRANTS THAT NO
AGENT, BROKER, INVESTMENT BANKER, PERSON OR FIRM ACTING ON BEHALF OF OR UNDER
THE AUTHORITY OF SUCH PARTY HERETO IS OR WILL BE ENTITLED TO ANY BROKER'S OR
FINDER'S FEE OR ANY OTHER COMMISSION DIRECTLY OR INDIRECTLY IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED HEREIN, EXCEPT