BY
JURY.
THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY
ITS REASONABLE ATTORNEY'S FEES AND COSTS.
IN THE EVENT THAT ANY PROVISION OF
THIS AGREEMENT OR ANY OTHER AGREEMENT DELIVERED IN CONNECTION
24
HEREWITH IS INVALID OR UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF
LAW, THEN SUCH PROVISION SHALL BE DEEMED INOPERATIVE TO THE EXTENT THAT IT MAY
CONFLICT THEREWITH AND SHALL BE DEEMED MODIFIED TO CONFORM WITH SUCH STATUTE OR
RULE OF LAW.
ANY SUCH PROVISION WHICH MAY PROVE INVALID OR UNENFORCEABLE UNDER
ANY LAW SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION
OF ANY AGREEMENT.
12.2
SURVIVAL.
THE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
MADE HEREIN SHALL SURVIVE ANY INVESTIGATION MADE BY THE PURCHASER AND THE
CLOSING OF THE TRANSACTIONS CONTEMPLATED HEREBY. ALL STATEMENTS AS TO FACTUAL
MATTERS CONTAINED IN ANY CERTIFICATE OR OTHER INSTRUMENT DELIVERED BY OR ON
BEHALF OF THE COMPANY PURSUANT HERETO IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE DEEMED TO BE REPRESENTATIONS AND WARRANTIES BY THE
COMPANY HEREUNDER SOLELY AS OF THE DATE OF SUCH CERTIFICATE OR INSTRUMENT.
12.3
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, THE PROVISIONS HEREOF SHALL INURE TO THE BENEFIT OF, AND BE BINDING
UPON, THE SUCCESSORS, ASSIGNS, HEIRS, EXECUTORS AND ADMINISTRATORS OF THE
PARTIES HERETO AND SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY EACH
PERSON WHO SHALL BE A HOLDER OF THE SECURITIES FROM TIME TO TIME.
12.4
ENTIRE AGREEMENT.
THIS AGREEMENT, THE EXHIBITS AND SCHEDULES
HERETO, THE RELATED AGREEMENTS AND THE OTHER DOCUMENTS DELIVERED PURSUANT HERETO
CONSTITUTE THE FULL AND ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES
WITH REGARD TO THE SUBJECTS HEREOF AND NO PARTY SHALL BE LIABLE OR BOUND TO ANY
OTHER IN ANY MANNER BY ANY REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
EXCEPT AS SPECIFICALLY SET FORTH HEREIN AND THEREIN.
12.5
SEVERABILITY.
IN CASE ANY PROVISION OF THE AGREEMENT SHALL BE
INVALID, ILLEGAL OR UNENFORCEABLE, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF
THE REMAINING PROVISIONS SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY.
12.6
AMENDMENT AND WAIVER.
(A)
THIS AGREEMENT MAY BE AMENDED OR MODIFIED ONLY UPON THE WRITTEN
CONSENT OF THE COMPANY AND THE PURCHASER.
(B)
THE OBLIGATIONS OF THE COMPANY AND THE RIGHTS OF THE HOLDERS OF
THE SECURITIES UNDER THE AGREEMENT MAY BE WAIVED ONLY WITH THE WRITTEN CONSENT
OF SUCH HOLDERS OF SECURITIES.
THE RIGHTS OF THE HOLDER OF PREFERRED STOCK MAY
BE WAIVED ONLY WITH THE WRITTEN CONSENT OF SUCH HOLDER.
12.7
DELAYS OR OMISSIONS.
IT IS AGREED THAT NO DELAY OR OMISSION TO
EXERCISE ANY RIGHT, POWER OR REMEDY ACCRUING TO ANY PARTY, UPON ANY BREACH,
DEFAULT OR NONCOMPLIANCE BY ANOTHER PARTY UNDER THIS AGREEMENT OR THE RELATED
AGREEMENTS, SHALL IMPAIR ANY SUCH RIGHT, POWER OR REMEDY, NOR SHALL IT BE
CONSTRUED TO BE A WAIVER OF ANY SUCH BREACH, DEFAULT OR NONCOMPLIANCE, OR ANY
ACQUIESCENCE THEREIN, OR OF OR IN ANY SIMILAR BREACH, DEFAULT OR NONCOMPLIANCE
THEREAFTER OCCURRING.
IT IS FURTHER AGREED THAT