IF (I) SUCH SECURITIES HAVE BEEN
RESOLD UNDER AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (II)
SUCH SECURITIES HAVE BEEN OR WILL BE TRANSFERRED IN COMPLIANCE WITH RULE 144
UNDER THE SECURITIES ACT, (III) SUCH SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144(K) UNDER THE SECURITIES ACT OR (IV) THE INVESTOR SHALL HAVE PROVIDED
THE COMPANY WITH AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY,
STATING THAT SUCH SECURITIES MAY LAWFULLY BE TRANSFERRED WITHOUT REGISTRATION
UNDER THE SECURITIES ACT.
9.
MISCELLANEOUS.
9.1
SURVIVAL OF WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES OF THE
COMPANY CONTAINED IN SECTIONS 3.1, 3.2, 3.4, 3.5, 3.6 AND 3.18 AND OF THE
INVESTOR CONTAINED IN THIS AGREEMENT SHALL SURVIVE THE CLOSING WITHOUT
LIMITATION AS TO TIME AND THE OTHER REPRESENTATIONS AND WARRANTIES OF THE
COMPANY MADE HEREIN AND IN THE CERTIFICATES DELIVERED PURSUANT HERETO SHALL
SURVIVE FOR EIGHTEEN MONTHS FOLLOWING THE CLOSING.
THE COVENANTS AND
UNDERTAKINGS SET FORTH IN SECTIONS 8.1 AND 8.2 OF THIS AGREEMENT CONTEMPLATING
PERFORMANCE BY ANY PARTY FOLLOWING THE CLOSING SHALL SURVIVE IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS.
9.2
REMEDIES.
THE RIGHTS, POWERS AND REMEDIES OF THE PARTIES UNDER
THIS AGREEMENT ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY OTHER RIGHT, POWER OR
REMEDY WHICH SUCH PARTIES MAY HAVE UNDER ANY OTHER AGREEMENT OR LAW.
NO SINGLE
OR PARTIAL ASSERTION OR EXERCISE OF ANY RIGHT, POWER OR REMEDY OF A PARTY
HEREUNDER SHALL PRECLUDE ANY OTHER OR FURTHER ASSERTION OR EXERCISE THEREOF.
9.3
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE BINDING UPON THE RESPECTIVE SUCCESSORS AND ASSIGNS OF THE PARTIES,
INCLUDING, WITHOUT LIMITATION, SUCCESSORS THROUGH MERGER, CONSOLIDATION,
REORGANIZATION, RECAPITALIZATION, ANY SIMILAR TRANSACTION OR OTHERWISE.
NEITHER
THIS AGREEMENT NOR ANY RIGHTS OR DUTIES OF A PARTY HERETO MAY BE ASSIGNED BY
SUCH PARTY, IN WHOLE OR IN PART, WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER
PARTY HERETO; PROVIDED THAT THE INVESTOR MAY ASSIGN, IN ITS SOLE DISCRETION, ANY
OF OR ALL THEIR RIGHTS, INTERESTS AND OBLIGATIONS UNDER THIS AGREEMENT TO ANY
AFFILIATE OF THE INVESTOR THAT WOULD NOT REASONABLY BE EXPECTED TO CAUSE ANY
DELAY IN THE SATISFACTION OF THE CONDITION SET FORTH IN SECTION 7.1.
ANY
ATTEMPTED ASSIGNMENT IN VIOLATION OF THIS SECTION 9.3 SHALL BE VOID.
9.4
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER WRITINGS REFERRED
TO HEREIN OR DELIVERED PURSUANT HERETO WHICH FORM A PART HEREOF CONTAIN THE
ENTIRE AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
THEREOF AND SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS ARRANGEMENTS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, WITH RESPECT THERETO.
THIS AGREEMENT
IS FOR THE SOLE BENEFIT OF THE PARTIES HERETO AND THEIR PERMITTED ASSIGNS AND
16
NOTHING HEREIN EXPRESSED OR IMPLIED SHALL GIVE OR BE CONSTRUED TO GIVE TO ANY
PERSON, OTHER THAN THE PARTIES HERETO AND SUCH ASSIGNS, ANY LEGAL RIGHTS OR
EQUITABLE RIGHTS HEREUNDER.
9.5
GOVERNING LAW, CONSENT TO JURISDICTION AND WAIVER OF TRIAL BY JURY.
(A)
THIS AGREEMENT