VALIDITY OF THIS
AGREEMENT SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS IN AND FOR THE COUNTY OF SAN DIEGO, CALIFORNIA, AND EACH PARTY
HEREBY AGREES TO SUBMIT TO THE PERSONAL AND EXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS.
IF ANY TERM, COVENANT OR CONDITION OF THIS AGREEMENT IS HELD TO BE
TO ANY EXTENT INVALID, VOID, OR OTHERWISE UNENFORCEABLE BY ANY COURT OR
ARBITRATOR, THE REMAINDER OF THIS AGREEMENT SHALL NOT BE AFFECTED THEREBY AND
EACH TERM, COVENANT AND CONDITION OF THIS AGREEMENT SHALL BE VALID AND
ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
11.4
ENTIRE AGREEMENT; MODIFICATION AND WAIVER.
THIS AGREEMENT,
TOGETHER WITH THE AGREEMENTS AND DOCUMENTS REFERRED TO HEREIN, CONSTITUTES THE
ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS.
ALL EXHIBITS AND SCHEDULES ATTACHED HERETO ARE INCORPORATED
HEREIN BY THIS REFERENCE.
THIS AGREEMENT MAY BE MODIFIED, AMENDED OR
SUPPLEMENTED ONLY BY A WRITTEN INSTRUMENT DULY EXECUTED BY ALL PARTIES HERETO.
NO COVENANT, TERM OR CONDITION OR THE BREACH THEREOF SHALL BE DEEMED WAIVED,
UNLESS IT IS WAIVED IN WRITING AND SIGNED BY THE PARTY AGAINST WHOM THE WAIVER
IS CLAIMED.
ANY WAIVER OF BREACH OF ANY COVENANT, TERM OR CONDITION SHALL NOT
BE DEEMED TO BE A WAIVER OF ANY PRECEDING OR SUCCEEDING BREACH OF THE SAME OR
ANY OTHER COVENANT, TERM OR CONDITION.
THE FAILURE OF ANY PARTY TO INSIST UPON
STRICT PERFORMANCE OF ANY COVENANT, TERM OR CONDITION HEREUNDER SHALL NOT
CONSTITUTE A WAIVER OF SUCH PARTY'S RIGHT TO DEMAND STRICT COMPLIANCE THEREWITH
IN THE FUTURE.
TIME IS OF THE ESSENCE FOR PURPOSES OF EACH AND EVERY PROVISION
OF THIS AGREEMENT.
11.5
NOTICES.
ALL PAYMENTS, NOTICES, REQUESTS, DEMANDS AND OTHER
COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING AND SHALL BE
DELIVERED PERSONALLY (WHICH SHALL INCLUDE DELIVERY BY COURIER OR OVERNIGHT
DELIVERY SERVICE) OR SENT BY CERTIFIED OR REGISTERED MAIL POSTAGE PREPAID,
CERTIFIED OR RETURN RECEIPT REQUESTED, OR SENT BY FACSIMILE TRANSMISSION, TO THE
PARTIES AT THEIR RESPECTIVE ADDRESS SET FORTH BELOW OR AT SUCH OTHER ADDRESS AS
SHALL BE GIVEN IN WRITING BY A PARTY TO THE OTHER PARTY.
ITEMS DELIVERED
PERSONALLY OR BY FACSIMILE TRANSMISSION SHALL BE DEEMED DELIVERED ON THE DATE OF
ACTUAL DELIVERY; ITEMS SENT BY CERTIFIED OR REGULAR MAIL SHALL BE DEEMED
DELIVERED THREE (3) DAYS AFTER MAILING.
25
If to Buyer:
Stressgen Bioreagents Corporation
c/o David J. Parker
General Partner
Ampersand Ventures
55 William Street, Suite 240
Wellesley, MA 02181
(F) 781-239-0824
If to Seller:
Stressgen Biotechnologies, Inc.
Attn: Chief Financial Officer
6055 Lusk Boulevard
San Diego, CA 92121
(F) 858-450-6849
11.6
PAYMENT OF FEES AND EXPENSES.
EACH PARTY TO THIS AGREEMENT SHALL
BE RESPONSIBLE FOR, AND SHALL PAY, ALL OF ITS OWN LEGAL, ACCOUNTING AND OTHER
TRANSACTIONAL FEES AND EXPENSES INCURRED IN THE NEGOTIATION AND PREPARATION OF
THIS AGREEMENT AND THE RELATED DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREIN AND THEREIN.
11.7
DRAFTING PARTY.
THE PROVISIONS OF