AGREEMENT

 

1.

The Company and Investor hereby mutually agree to terminate the Purchase Agreement and the Registration Rights Agreement, and all of the Company’s and the Investor’s respective future covenants, agreements, obligations and commitments thereunder, effective as of December 7, 2011 and any and all rights, duties and obligations arising thereunder or in connection with the Purchase Agreement, and the Transaction Documents (other than this Agreement) are now and hereafter fully and finally terminated, provided, however, that (i) the representations and warranties of the Investor and Company contained in Sections 3 and 4 of the Purchase Agreement, (ii) the indemnification provisions set forth in Section 9 of the Purchase Agreement, and (iii) the agreements and covenants set forth in Section 12 of the Purchase Agreement shall survive such termination for a period of twelve (12) months succeeding the date of this Agreement in accordance with the Purchase Agreement.  This Agreement, the rights of the parties under and in connection herewith, and all actions arising in whole or part under or in connection herewith will be governed by and construed in accordance with the laws of the State of Illinois. The parties hereby irrevocably and unconditionally submit to the jurisdiction of any federal or state court located sitting in the City of Chicago, County of Cook and State of Illinois over any dispute for purposes of any action, suit or proceeding arising out of or relating to this Agreement. Each party irrevocably waives any objection it may have to the venue of any action, suit or proceeding brought in such court or to the convenience of the forum. No modification or waiver of any provision hereof shall be enforceable unless approved by the Investor in writing. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. 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.

 

2.

Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one business day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be: