MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH IN
SECTION 11.9 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER
OF THE COMPANY'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE
U.S. MAILS, PROPER POSTAGE PREPAID.
(C)
THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN THE PURCHASER AND/OR THE COMPANY ARISING OUT OF, CONNECTED
WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS AGREEMENT, ANY OTHER RELATED AGREEMENT OR THE TRANSACTIONS
RELATED HERETO OR THERETO.
11.2
SEVERABILITY.
WHEREVER POSSIBLE EACH PROVISION
OF THIS AGREEMENT AND THE RELATED AGREEMENTS SHALL BE INTERPRETED IN SUCH MANNER
AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
AGREEMENT OR ANY RELATED AGREEMENT SHALL BE PROHIBITED BY OR INVALID OR ILLEGAL
UNDER APPLICABLE LAW SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY OR ILLEGALITY, WITHOUT INVALIDATING THE REMAINDER OF
SUCH PROVISION OR THE REMAINING PROVISIONS THEREOF WHICH SHALL NOT IN ANY WAY BE
AFFECTED OR IMPAIRED THEREBY.
11.3
SURVIVAL.
THE REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS MADE HEREIN SHALL SURVIVE ANY INVESTIGATION MADE BY THE
PURCHASER AND THE CLOSING OF THE TRANSACTIONS CONTEMPLATED HEREBY TO THE EXTENT
PROVIDED THEREIN.
ALL STATEMENTS AS TO FACTUAL MATTERS CONTAINED IN ANY
CERTIFICATE OR OTHER INSTRUMENT DELIVERED BY OR ON BEHALF OF THE COMPANY
PURSUANT HERETO IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
DEEMED TO BE REPRESENTATIONS AND WARRANTIES BY THE COMPANY HEREUNDER SOLELY AS
OF THE DATE OF SUCH CERTIFICATE OR INSTRUMENT.
ALL INDEMNITIES SET FORTH HEREIN
SHALL SURVIVE THE EXECUTION, DELIVERY AND TERMINATION OF THIS AGREEMENT AND THE
NOTE AND THE MAKING AND REPAYMENT OF THE OBLIGATIONS ARISING HEREUNDER, UNDER
THE NOTE AND UNDER THE OTHER RELATED AGREEMENTS.
11.4
SUCCESSORS.
EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN, THE PROVISIONS HEREOF SHALL INURE TO THE BENEFIT OF, AND BE
BINDING UPON, THE SUCCESSORS, HEIRS, EXECUTORS AND ADMINISTRATORS OF THE PARTIES
HERETO AND SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY EACH PERSON OR
ENTITY WHICH SHALL BE A HOLDER OF THE SECURITIES FROM TIME TO TIME, OTHER THAN
THE HOLDERS OF COMMON STOCK WHICH HAS BEEN SOLD BY THE PURCHASER PURSUANT TO
RULE 144 OR AN
25
EFFECTIVE REGISTRATION STATEMENT.
THE PURCHASER SHALL NOT BE PERMITTED TO
ASSIGN ITS RIGHTS HEREUNDER OR UNDER ANY RELATED AGREEMENT TO A COMPETITOR OF
THE COMPANY UNLESS AN EVENT OF DEFAULT (AS DEFINED IN THE NOTE) HAS OCCURRED AND
IS CONTINUING.
11.5
ENTIRE AGREEMENT; MAXIMUM INTEREST.
THIS
AGREEMENT, THE RELATED AGREEMENTS, THE EXHIBITS AND SCHEDULES HERETO AND THERETO
AND THE OTHER DOCUMENTS DELIVERED PURSUANT HERETO CONSTITUTE