PLACE AND STEAD OF SUCH STOCKHOLDER, TO VOTE SUCH
STOCKHOLDER'S SUBJECT SHARES, OR GRANT A
B-2
CONSENT OR APPROVAL IN RESPECT OF SUCH SHARES, AT ANY MEETING OF STOCKHOLDERS OF
THE COMPANY OR AT ANY ADJOURNMENT THEREOF OR IN ANY OTHER CIRCUMSTANCES IN WHICH
THEIR VOTE, CONSENT OR OTHER APPROVAL IS SOUGHT, IN FAVOR OF APPROVAL OF ANY AND
ALL OF THE MATTERS CONTEMPLATED BY SECTION 9(E) OF THE INVESTMENT AGREEMENT.
(B)
EACH STOCKHOLDER REPRESENTS THAT ANY PROXIES HERETOFORE GIVEN IN
RESPECT OF SUCH STOCKHOLDER'S SUBJECT SHARES AND STILL IN EFFECT ARE NOT
IRREVOCABLE, AND, TO THE EXTENT INCONSISTENT WITH THE PROVISIONS OF THIS
AGREEMENT, THAT ANY SUCH PROXIES ARE HEREBY REVOKED.
(C)
EACH STOCKHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS
SECTION 3 IS GIVEN IN CONNECTION WITH THE EXECUTION OF THE INVESTMENT AGREEMENT,
AND THAT SUCH PROXY IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF SUCH
STOCKHOLDER UNDER THIS AGREEMENT.
SUCH STOCKHOLDER HEREBY FURTHER AFFIRMS THAT
THE PROXY IS COUPLED WITH AN INTEREST AND MAY UNDER NO CIRCUMSTANCES BE REVOKED,
SUBJECT TO SECTION 5(E) HEREIN.
SUCH STOCKHOLDER HEREBY RATIFIES AND CONFIRMS
ALL THAT SUCH PROXY MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
SUCH
PROXY IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 212(E) OF THE GENERAL CORPORATION LAW OF THE STATE OF
DELAWARE, SUBJECT TO SECTION 5(E) HEREIN.
4.
FIDUCIARY DUTIES OF DIRECTORS.
EACH STOCKHOLDER THAT IS A
DIRECTOR OR OFFICER OF THE COMPANY IS ENTERING THIS AGREEMENT IN HIS OR HER
CAPACITY AS THE RECORD OR BENEFICIAL OWNER OF THE STOCKHOLDER'S SUBJECT SHARES,
AND NOT IN HIS OR HER CAPACITY AS A DIRECTOR OR OFFICER OF THE COMPANY.
NOTHING
IN THIS AGREEMENT SHALL BE DEEMED IN ANY MANNER TO LIMIT THE DISCRETION OF ANY
SUCH STOCKHOLDER TO TAKE ANY ACTION, OR FAIL TO TAKE ANY ACTION, IN HIS OR HER
CAPACITY AS A DIRECTOR OR OFFICER OF THE COMPANY.
5.
MISCELLANEOUS.
(A)
ENTIRE AGREEMENT.
THIS AGREEMENT (INCLUDING EXHIBIT A HERETO)
EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO IN
RESPECT OF THE SUBJECT MATTER CONTAINED HEREIN.
THIS AGREEMENT SUPERSEDES ALL
PRIOR WRITTEN AND PRIOR OR CONTEMPORANEOUS ORAL AGREEMENTS AND UNDERSTANDINGS
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
(B)
INVALID PROVISIONS.
IF ANY PROVISION OF THIS AGREEMENT OR THE
APPLICATION THEREOF TO ANY PERSON (INCLUDING THE OFFICERS AND DIRECTORS PARTIES
HERETO) OR CIRCUMSTANCES IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO
BE INVALID, VOID OR UNENFORCEABLE, THE REMAINING PROVISIONS HEREOF, OR THE
APPLICATION OF SUCH PROVISION TO PERSONS OR CIRCUMSTANCES OTHER THAN THOSE AS TO
WHICH IT HAS BEEN HELD INVALID OR UNENFORCEABLE, SHALL REMAIN IN FULL FORCE AND
EFFECT AND SHALL IN NO WAY BE AFFECTED, IMPAIRED OR INVALIDATED THEREBY, SO LONG
AS THE ECONOMIC OR LEGAL SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY IS
NOT AFFECTED IN ANY MANNER ADVERSE TO ANY PARTY.
UPON SUCH DETERMINATION, THE
PARTIES SHALL NEGOTIATE IN GOOD FAITH IN