BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
NEITHER THE COMPANY NOR ANY BUYER SHALL ASSIGN THIS AGREEMENT OR ANY RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY
HERETO.
(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. THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
THE BUYER(S) CONTAINED IN SECTIONS 2 AND 3, THE AGREEMENTS AND COVENANTS SET
FORTH IN SECTIONS 4, 5 AND 9, AND THE INDEMNIFICATION PROVISIONS SET FORTH IN
SECTION 8, SHALL SURVIVE THE CLOSING FOR A PERIOD OF TWO (2) YEARS FOLLOWING THE
DATE ON WHICH THE CONVERTIBLE DEBENTURES ARE CONVERTED IN FULL. THE BUYER(S)
SHALL BE RESPONSIBLE ONLY FOR ITS OWN REPRESENTATIONS, WARRANTIES, AGREEMENTS
AND COVENANTS HEREUNDER.
(J)
PUBLICITY. THE COMPANY AND THE BUYER(S) SHALL HAVE THE RIGHT TO
APPROVE, BEFORE ISSUANCE ANY PRESS RELEASE OR ANY OTHER PUBLIC STATEMENT WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY MADE BY ANY PARTY; PROVIDED,
HOWEVER, THAT THE COMPANY SHALL BE ENTITLED, WITHOUT THE PRIOR APPROVAL OF THE
BUYER(S), TO ISSUE ANY PRESS RELEASE OR OTHER PUBLIC DISCLOSURE WITH RESPECT TO
SUCH TRANSACTIONS REQUIRED UNDER APPLICABLE SECURITIES OR OTHER LAWS OR
REGULATIONS (THE COMPANY SHALL USE ITS BEST EFFORTS TO CONSULT THE BUYER(S) IN
CONNECTION WITH ANY SUCH PRESS RELEASE OR OTHER PUBLIC DISCLOSURE PRIOR TO ITS
RELEASE AND BUYER(S) SHALL BE PROVIDED WITH A COPY THEREOF UPON RELEASE
THEREOF).
(K)
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
THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE
22
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY. WITHOUT LIMITATION OF THE
FOREGOING, THE BUYER(S) WILL TIMELY FILE ANY REPORTS REQUIRED UNDER SECTIONS
13(D) OR 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934.
(L)
TERMINATION. IN THE EVENT THAT THE FIRST CLOSING SHALL NOT HAVE
OCCURRED WITH RESPECT TO THE BUYERS ON OR BEFORE THE TRADING DAY IMMEDIATELY
FOLLOWING THE DATE HEREOF DUE TO THE COMPANY'S OR THE BUYER'S FAILURE TO SATISFY
THE CONDITIONS SET FORTH IN SECTIONS 6 AND 7 ABOVE (AND THE NON-BREACHING
PARTY'S FAILURE TO WAIVE SUCH UNSATISFIED CONDITION(S)), THE NON-BREACHING PARTY
SHALL HAVE THE OPTION TO TERMINATE THIS AGREEMENT WITH RESPECT TO SUCH BREACHING
PARTY AT THE CLOSE OF BUSINESS ON SUCH DATE WITHOUT LIABILITY OF ANY PARTY TO
ANY OTHER PARTY; PROVIDED, HOWEVER, THAT IF THIS AGREEMENT IS TERMINATED BY THE
COMPANY PURSUANT TO THIS SECTION 9(L), THE COMPANY SHALL REMAIN OBLIGATED TO
REIMBURSE THE BUYER(S) FOR THE FEES AND EXPENSES OF YORKVILLE ADVISORS LLC
DESCRIBED IN AND SUBJECT TO SECTION 4(G) ABOVE.
(M)
NO STRICT CONSTRUCTION. THE LANGUAGE USED IN THIS AGREEMENT