ANY
GOVERNMENTAL AUTHORITY SHALL HAVE ISSUED AN ORDER, DECREE, OR RULING OR TAKEN
ANY OTHER ACTION RESTRAINING, ENJOINING OR OTHERWISE PROHIBITING IN ANY MATERIAL
RESPECTS THE TRANSACTIONS CONTEMPLATED HEREBY AND SUCH ORDER, DECREE, RULING OR
OTHER ACTION SHALL HAVE BECOME FINAL AND NONAPPEALABLE.
SECTION 10.2
EFFECT.
(A)
UPON TERMINATION OF THIS AGREEMENT, THE INVESTOR'S RIGHTS AND
OBLIGATIONS TO PURCHASE ANY CONVERTIBLE NOTES OR CONVERSION SHARES PURSUANT TO
ARTICLE 2 HEREOF SHALL TERMINATE.
(B)
TERMINATION OF THIS AGREEMENT BY A PARTY SHALL NOT RELIEVE ANY OTHER
PARTY HERETO OF ANY LIABILITY FOR BREACH OF REPRESENTATION, WARRANTY, COVENANT
OR AGREEMENT BY SUCH OTHER PARTIES INCLUDING LIABILITY FOR MONETARY DAMAGES
AND/OR SPECIFIC PERFORMANCE.
ARTICLE XI
OTHER PROVISIONS
SECTION 11.1
FURTHER ASSURANCES.
AT SUCH TIME AND FROM TIME TO TIME ON AND
AFTER THE DATE HEREOF UPON REQUEST BY THE INVESTOR, THE COMPANY WILL EXECUTE,
ACKNOWLEDGE AND DELIVER, OR WILL CAUSE TO BE DONE, EXECUTED, ACKNOWLEDGED AND
DELIVERED, ALL SUCH FURTHER ACTS, CERTIFICATES AND ASSURANCES THAT MAY BE
REASONABLY REQUIRED FOR THE BETTER CONVEYING, TRANSFERRING, ASSIGNING,
DELIVERING, ASSURING AND CONFIRMING TO THE INVESTOR, OR TO THE INVESTOR'S
RESPECTIVE SUCCESSORS AND ASSIGNS, ALL OF THE CONVERSION SHARES OR TO OTHERWISE
CARRY OUT THE PURPOSES OF THIS AGREEMENT AND THE AGREEMENTS, DOCUMENTS AND
INSTRUMENTS CONTEMPLATED HEREBY.
34
SECTION 11.2
COMPLETE AGREEMENT.
THE SCHEDULES AND EXHIBITS TO THIS AGREEMENT
SHALL BE CONSTRUED AS AN INTEGRAL PART OF THIS AGREEMENT TO THE SAME EXTENT AS
IF THEY HAD BEEN SET FORTH VERBATIM HEREIN.
THIS AGREEMENT AND THE SCHEDULES
AND EXHIBITS HERETO CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO
WITH RESPECT TO THE SUBJECT MATTERS HEREOF AND THEREOF AND SUPERSEDE ALL PRIOR
AGREEMENTS WHETHER WRITTEN OR ORAL RELATING HERETO.
SECTION 11.3
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
THE
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL
SURVIVE THE CLOSING AND REMAIN IN FULL FORCE AND EFFECT; PROVIDED, HOWEVER, THAT
THE REPRESENTATIONS AND WARRANTIES SHALL EXPIRE ON THE SECOND ANNIVERSARY OF THE
DATE OF THE CLOSING HEREUNDER.
NO INDEPENDENT INVESTIGATION OF THE COMPANY BY
THE INVESTOR, ITS COUNSEL, OR ANY OF ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY
LIMIT OR RESTRICT THE SCOPE OF THE REPRESENTATIONS AND WARRANTIES MADE BY THE
COMPANY IN THIS AGREEMENT.
SECTION 11.4
CONSENT, WAIVER, AMENDMENT, ETC.
THE FAILURE OF ANY PARTY HERETO
TO ENFORCE AT ANY TIME ANY OF THE PROVISIONS OF THIS AGREEMENT SHALL NOT, ABSENT
AN EXPRESS WRITTEN WAIVER SIGNED BY THE PARTY MAKING SUCH WAIVER SPECIFYING THE
PROVISION BEING WAIVED, BE CONSTRUED TO BE A WAIVER OF ANY SUCH PROVISION, NOR
IN ANY WAY TO AFFECT THE VALIDITY OF THIS AGREEMENT OR ANY PART THEREOF OR THE
RIGHT OF THE PARTY THEREAFTER TO ENFORCE EACH AND EVERY SUCH PROVISION.
NO
WAIVER OF ANY BREACH OF THIS AGREEMENT SHALL BE HELD TO BE A WAIVER OF ANY OTHER
OR SUBSEQUENT BREACH.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, IN EACH
CASE IN WHICH APPROVAL OF THE INVESTOR IS REQUIRED BY THE TERMS OF THIS
AGREEMENT, SUCH REQUIREMENT SHALL BE SATISFIED BY