OF THIS AGREEMENT SHALL NOT IN ANY WAY BE
AFFECTED OR IMPAIRED THEREBY AND THE PARTIES WILL ATTEMPT TO AGREE UPON A VALID
AND ENFORCEABLE PROVISION THAT IS A REASONABLE SUBSTITUTE THEREFOR, AND UPON SO
AGREEING, SHALL INCORPORATE SUCH SUBSTITUTE PROVISION IN THIS AGREEMENT.
5.12
REPLACEMENT OF SECURITIES.
IF ANY CERTIFICATE OR INSTRUMENT
EVIDENCING ANY SECURITIES IS MUTILATED, LOST, STOLEN OR DESTROYED, THE COMPANY
SHALL ISSUE OR CAUSE TO BE ISSUED IN EXCHANGE AND SUBSTITUTION FOR AND UPON
CANCELLATION THEREOF, OR IN LIEU OF AND SUBSTITUTION THEREFOR, A NEW CERTIFICATE
OR INSTRUMENT, BUT ONLY UPON RECEIPT OF EVIDENCE REASONABLY SATISFACTORY TO THE
COMPANY OF SUCH LOSS, THEFT OR DESTRUCTION AND CUSTOMARY AND REASONABLE
INDEMNITY, IF REQUESTED.
THE APPLICANTS FOR A NEW CERTIFICATE OR INSTRUMENT
UNDER SUCH CIRCUMSTANCES SHALL ALSO PAY ANY REASONABLE THIRD-PARTY COSTS
ASSOCIATED WITH THE ISSUANCE OF SUCH REPLACEMENT SECURITIES.
22
5.13
REMEDIES.
IN ADDITION TO BEING ENTITLED TO EXERCISE ALL RIGHTS
PROVIDED HEREIN OR GRANTED BY LAW, INCLUDING RECOVERY OF DAMAGES, PURCHASER AND
THE COMPANY WILL BE ENTITLED TO SPECIFIC PERFORMANCE UNDER THE TRANSACTION
DOCUMENTS.
THE PARTIES AGREE THAT MONETARY DAMAGES MAY NOT BE ADEQUATE
COMPENSATION FOR ANY LOSS INCURRED BY REASON OF ANY BREACH OF OBLIGATIONS
DESCRIBED IN THE FOREGOING SENTENCE AND HEREBY AGREES TO WAIVE IN ANY ACTION FOR
SPECIFIC PERFORMANCE OF ANY SUCH OBLIGATION THE DEFENSE THAT A REMEDY AT LAW
WOULD BE ADEQUATE.
5.14
PAYMENT SET ASIDE.
TO THE EXTENT THAT THE COMPANY MAKES A PAYMENT
OR PAYMENTS TO PURCHASER PURSUANT TO ANY TRANSACTION DOCUMENT OR PURCHASER
ENFORCES OR EXERCISES ITS RIGHTS THEREUNDER, AND SUCH PAYMENT OR PAYMENTS OR THE
PROCEEDS OF SUCH ENFORCEMENT OR EXERCISE OR ANY PART THEREOF ARE SUBSEQUENTLY
INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE, RECOVERED
FROM, DISGORGED BY OR ARE REQUIRED TO BE REFUNDED, REPAID OR OTHERWISE RESTORED
TO THE COMPANY, A TRUSTEE, RECEIVER OR ANY OTHER PERSON UNDER ANY LAW
(INCLUDING, WITHOUT LIMITATION, ANY BANKRUPTCY LAW, STATE OR FEDERAL LAW, COMMON
LAW OR EQUITABLE CAUSE OF ACTION), THEN TO THE EXTENT OF ANY SUCH RESTORATION
THE OBLIGATION OR PART THEREOF ORIGINALLY INTENDED TO BE SATISFIED SHALL BE
REVIVED AND CONTINUED IN FULL FORCE AND EFFECT AS IF SUCH PAYMENT HAD NOT BEEN
MADE OR SUCH ENFORCEMENT OR SETOFF HAD NOT OCCURRED.
ARTICLE VI.
CONDITIONS
6.1
CONDITIONS TO THE CLOSING OF THE PURCHASER.
PURCHASER'S
OBLIGATION TO PURCHASE THE PORTION OF THE SECURITIES BEING ISSUED AT THE CLOSING
IS SUBJECT TO THE SATISFACTION, OR WAIVER BY PURCHASER, OF THE FOLLOWING
CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY SET FORTH IN THIS AGREEMENT SHALL BE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS (EXCEPT FOR THOSE QUALIFIED AS TO MATERIALITY OR A
MATERIAL ADVERSE EFFECT, WHICH SHALL BE TRUE AND CORRECT IN ALL RESPECTS) AS OF
THE DATE OF THIS AGREEMENT AND AS OF THE CLOSING DATE (EXCEPT TO THE EXTENT THAT
SUCH REPRESENTATION OR WARRANTY SPEAKS OF AN EARLIER DATE, IN WHICH CASE SUCH
REPRESENTATION OR WARRANTY SHALL BE TRUE AND CORRECT