ACHIEVE SUBSTANTIALLY THE SAME EFFECT FROM
A DILUTION PROTECTION STANDPOINT AS IF THE PROCEDURES SET FORTH IN SECTION 6.1
THROUGH SECTION 6.5 HAVE BEEN FOLLOWED PRIOR TO THE ISSUANCE OF SUCH NEW
SECURITIES.
7.
MISCELLANEOUS.
7.1.
CERTAIN DEFINED TERMS.
AS USED IN THIS AGREEMENT, THE TERM
"PERSON" SHALL MEAN AN INDIVIDUAL, CORPORATION, TRUST, PARTNERSHIP, LIMITED
LIABILITY COMPANY, JOINT VENTURE,
17
UNINCORPORATED ORGANIZATION, GOVERNMENT AGENCY OR ANY AGENCY OR POLITICAL
SUBDIVISION THEREOF, OR OTHER ENTITY, AND THE TERMS "KNOWLEDGE," "KNOWN,"
"AWARENESS," "AWARE," AND SIMILAR EXPRESSIONS, WHEN USED WITH REFERENCE TO THE
COMPANY, REFER TO THE ACTUAL KNOWLEDGE OR AWARENESS OF DAVID STRUCKE AND GORDON
HEARD.
AS USED IN THIS AGREEMENT, EACH OF THE FOLLOWING TERMS IS DEFINED IN THE
SECTION OF THIS AGREEMENT INDICATED BELOW:
Defined Term
Section
1933 Act
Section 2.3
Abry Warrant Agreement
Section 2.3
Additional Agreements
Section 7.9
Affiliate
Section 7.11
Aggregate Purchase Price
Section 1.4
Agreement
Preamble
Certificate of Designation
Section 1.1
Closing
Section 1.4
Common Stock
Section 1.2
Company
Preamble
Confidential Information
Section 3.3
Converted Shares
Section 1.3
Disclosure Schedule
Section 2
EAG
Section 1.5
Environmental Laws
Section 2.20
Equity Plan
Section 2.3
Financial Statements
Section 2.5
Intellectual Property
Section 2.12(a)
Investor/Investors
Preamble
Investors' Common Shares
Section 6.2
Material Adverse Change
Section 2.7
New Securities
Section 6.2
Permitted Transfer
Section 7.11
Person
Section 7.1
Related Party
Section 2.22
Registration Rights Agreement
Section 2.2
Reserved Employee Shares
Section 2.3
Securities
Section 1.3
Series A Preferred Stock
Section 1.1
Shares
Section 1.3
Subsidiaries
Section 2.4
Transaction Documents
Section 2.2
Warrants
Section 1.2
18
7.2.
SURVIVAL OF COVENANTS; ASSIGNABILITY OF RIGHTS.
ALL COVENANTS,
AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE COMPANY MADE HEREIN AND IN THE
CERTIFICATES, LISTS, EXHIBITS, SCHEDULES OR OTHER WRITTEN INFORMATION DELIVERED
OR FURNISHED TO ANY INVESTOR IN CONNECTION WITH THE CLOSING SHALL BE DEEMED
MATERIAL AND TO HAVE BEEN RELIED UPON BY SUCH INVESTOR, AND, EXCEPT AS PROVIDED
OTHERWISE IN THIS AGREEMENT, SHALL SURVIVE THE DELIVERY OF THE SECURITIES, AND
SHALL BIND THE COMPANY'S SUCCESSORS AND ASSIGNS, WHETHER SO EXPRESSED OR NOT.
7.3.
INCORPORATION BY REFERENCE.
ALL EXHIBITS AND SCHEDULES APPENDED
TO THIS AGREEMENT ARE HEREIN INCORPORATED BY REFERENCE AND MADE A PART HEREOF.
7.4.
PARTIES IN INTEREST.
ALL COVENANTS, AGREEMENTS, REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS IN THIS AGREEMENT MADE BY AND ON BEHALF OF ANY OF
THE PARTIES HERETO SHALL BIND AND INURE TO THE BENEFIT OF THE RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES HERETO AND TO PERMITTED
TRANSFEREES OF THE SECURITIES WHETHER SO EXPRESSED OR NOT.
7.5.
AMENDMENTS AND WAIVERS.
EXCEPT AS SET FORTH IN THIS AGREEMENT,
CHANGES IN OR ADDITIONS TO THIS AGREEMENT MAY BE MADE, OR COMPLIANCE WITH ANY
TERM, COVENANT, AGREEMENT, CONDITION OR PROVISION SET FORTH HEREIN MAY BE
OMITTED OR WAIVED (EITHER GENERALLY OR IN A PARTICULAR INSTANCE AND EITHER
RETROACTIVELY OR PROSPECTIVELY) UPON THE WRITTEN CONSENT OF THE COMPANY AND THE
HOLDERS OF TWO-THIRDS (2/3) OF THE SHARES OF SERIES A PREFERRED STOCK SOLD
HEREUNDER AND ANY SHARES OF COMMON STOCK INTO WHICH ANY SHARES OF