page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(G)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, INCLUDING ANY PURCHASERS OF THE PREFERRED
SHARES, THE COMMON SHARES OR THE WARRANTS.
THE COMPANY SHALL NOT ASSIGN THIS
AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF THE HOLDERS OF AT LEAST A MAJORITY OF THE AGGREGATE NUMBER OF THE
PREFERRED SHARES ISSUED HEREUNDER, INCLUDING BY WAY OF A FUNDAMENTAL TRANSACTION
(UNLESS THE COMPANY IS IN COMPLIANCE WITH THE APPLICABLE PROVISIONS GOVERNING
FUNDAMENTAL TRANSACTIONS SET FORTH IN THE CERTIFICATE OF DESIGNATIONS AND THE
WARRANTS).
A BUYER MAY ASSIGN SOME OR ALL OF ITS RIGHTS HEREUNDER IN CONNECTION
WITH TRANSFER OF ANY OF ITS SECURITIES WITHOUT THE CONSENT OF THE COMPANY, IN
WHICH EVENT SUCH ASSIGNEE SHALL BE DEEMED TO BE A BUYER HEREUNDER WITH RESPECT
TO SUCH ASSIGNED RIGHTS.
(H)
NO THIRD PARTY BENEFICIARIES.
THIS
AGREEMENT IS INTENDED FOR THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
PERMITTED SUCCESSORS AND ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY
PROVISION HEREOF BE ENFORCED BY, ANY OTHER PERSON.
(I)
SURVIVAL.
UNLESS THIS AGREEMENT IS
TERMINATED UNDER SECTION 8, THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE BUYERS CONTAINED IN SECTIONS 2 AND 3 AND THE AGREEMENTS AND COVENANTS
SET FORTH IN SECTIONS 4, 5 AND 9 SHALL SURVIVE THE CLOSING AND THE DELIVERY AND
EXERCISE OF SECURITIES, AS APPLICABLE.
EACH BUYER SHALL BE RESPONSIBLE ONLY FOR
ITS OWN REPRESENTATIONS, WARRANTIES, AGREEMENTS AND COVENANTS HEREUNDER.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO
AND PERFORM, OR CAUSE TO BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND
THINGS, AND SHALL EXECUTE AND DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES,
INSTRUMENTS AND DOCUMENTS, AS ANY OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO
CARRY OUT THE INTENT AND ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(K)
INDEMNIFICATION.
IN CONSIDERATION OF EACH
BUYER'S EXECUTION AND DELIVERY OF THE TRANSACTION DOCUMENTS AND ACQUIRING THE
SECURITIES THEREUNDER AND IN ADDITION TO ALL OF THE COMPANY'S OTHER OBLIGATIONS
UNDER THE TRANSACTION DOCUMENTS, THE COMPANY SHALL DEFEND, PROTECT, INDEMNIFY
AND HOLD HARMLESS EACH BUYER AND EACH OTHER HOLDER OF THE SECURITIES (OTHER THAN
HOLDERS OF SECURITIES PURCHASED ON ANY ELIGIBLE MARKET (AS DEFINED IN THE
CERTIFICATE OF DESIGNATIONS) OR THE PRINCIPAL MARKET WITH RESPECT TO THOSE
SECURITIES), AND ALL OF SUCH BUYER'S STOCKHOLDERS, PARTNERS, MEMBERS, OFFICERS,
DIRECTORS, EMPLOYEES AND DIRECT OR INDIRECT INVESTORS AND ANY OF THE FOREGOING
PERSONS' AGENTS OR OTHER REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, THOSE
RETAINED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT)
(COLLECTIVELY, THE "INDEMNITEES"), AS INCURRED, FROM AND AGAINST ANY AND ALL
ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, COSTS, PENALTIES, FEES,
LIABILITIES AND DAMAGES,