Registrable Securities.
Any amendment
or waiver effected in accordance with this Article X is binding upon each Holder
and the Company; provided, however, that no amendment to this Agreement which
has a disproportionate negative impact on any Holder as compared to the other
Holders may be made without the approval of such negatively affected Holder.
ARTICLE XI
MISCELLANEOUS
11.1
CONFLICTING INSTRUCTIONS.
A PERSON OR ENTITY IS
DEEMED TO BE A HOLDER OF REGISTRABLE SECURITIES WHENEVER SUCH PERSON OR ENTITY
OWNS OF RECORD SUCH REGISTRABLE SECURITIES.
IF THE COMPANY RECEIVES CONFLICTING
INSTRUCTIONS, NOTICES OR ELECTIONS FROM TWO OR MORE PERSONS OR ENTITIES WITH
RESPECT TO THE SAME REGISTRABLE SECURITIES, THE COMPANY WILL ACT UPON THE BASIS
OF INSTRUCTIONS, NOTICE OR ELECTION RECEIVED FROM THE REGISTERED OWNER OF SUCH
REGISTRABLE SECURITIES.
11.2
NOTICES.
ANY NOTICES REQUIRED OR PERMITTED TO BE
GIVEN UNDER THE TERMS OF THIS AGREEMENT WILL BE GIVEN AS SET FORTH IN THE
PURCHASE AGREEMENT.
11.3
Waiver.
No waiver of any default with respect to
any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any subsequent default or a
waiver of
13
ANY SUBSEQUENT DEFAULT OR A WAIVER OF ANY OTHER PROVISION, CONDITION OR
REQUIREMENT HEREOF, NOR SHALL ANY DELAY OR OMISSION OF EITHER PARTY TO EXERCISE
ANY RIGHT HEREUNDER IN ANY MANNER IMPAIR THE EXERCISE OF ANY SUCH RIGHT.
11.4
GOVERNING LAW.
ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE DETERMINED IN ACCORDANCE WITH THE LIKE PROVISIONS OF THE PURCHASE AGREEMENT.
11.5
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT
IS INVALID OR UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN
SUCH PROVISION WILL BE DEEMED MODIFIED IN ORDER TO CONFORM WITH SUCH STATUTE OR
RULE OF LAW.
ANY PROVISION HEREOF THAT MAY PROVE INVALID OR UNENFORCEABLE UNDER
ANY LAW WILL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION
HEREOF.
11.6
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE
PURCHASE AGREEMENT (INCLUDING ALL SCHEDULES AND EXHIBITS THERETO) CONSTITUTE THE
ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND THEREOF.
THERE ARE NO RESTRICTIONS, PROMISES, WARRANTIES OR
UNDERTAKINGS, OTHER THAN THOSE SET FORTH OR REFERRED TO HEREIN OR THEREIN.
THIS
AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF.
11.7
SUCCESSORS AND ASSIGNS.
SUBJECT TO THE
REQUIREMENTS OF ARTICLE IX HEREOF, THIS AGREEMENT INURES TO THE BENEFIT OF AND
IS BINDING UPON THE SUCCESSORS AND ASSIGNS OF EACH OF THE PARTIES HERETO.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, INCLUDING, WITHOUT LIMITATION,
ARTICLE IX, THE RIGHTS OF AN INVESTOR HEREUNDER ARE ASSIGNABLE TO AND
EXERCISABLE BY A BONA FIDE PLEDGEE OF THE REGISTRABLE SECURITIES IN CONNECTION
WITH A HOLDER'S MARGIN OR BROKERAGE ACCOUNTS.
11.8
HEADINGS.
THE HEADINGS OF THIS AGREEMENT ARE FOR
CONVENIENCE OF REFERENCE ONLY, ARE NOT PART OF THIS AGREEMENT AND DO NOT AFFECT
ITS INTERPRETATION.
11.9
COUNTERPARTS; SIGNATURES BY FACSIMILE.
THIS
AGREEMENT