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.
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
33
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 A VOTE OR THE WRITTEN CONSENT OF THE
INVESTOR.
WITH THE WRITTEN CONSENT OF THE INVESTOR, THE OBLIGATIONS OF THE
COMPANY UNDER THIS AGREEMENT MAY BE WAIVED (EITHER GENERALLY OR IN