STATUS.
THE PARTICIPANT
REPRESENTS AND WARRANTS THAT, AS OF THE DATE HEREOF, THE PARTICIPANT IS AN
OFFICER, EMPLOYEE OR DIRECTOR OF THE COMPANY OR A SUBSIDIARY.
(F)
RESTRICTIONS ON SALE UPON PUBLIC
OFFERING.
THE PARTICIPANT AGREES THAT, IN THE EVENT THAT THE COMPANY FILES A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT WITH RESPECT TO AN UNDERWRITTEN
PUBLIC OFFERING OF ANY SERIES F SHARES, THE PARTICIPANT WILL NOT EFFECT ANY
PUBLIC SALE (INCLUDING A SALE UNDER RULE 144) OR DISTRIBUTION OF ANY SERIES F
SHARES (OTHER THAN AS PART OF SUCH UNDERWRITTEN PUBLIC OFFERING) DURING THE 20
DAYS PRIOR TO AND THE 180 DAYS AFTER THE EFFECTIVE DATE OF SUCH REGISTRATION
STATEMENT.
(G)
SECTION 83(B) ELECTION.
THE PARTICIPANT
AGREES THAT, WITHIN 20 DAYS AFTER THE ISSUANCE OF THE SHARES TO THE PARTICIPANT,
THE PARTICIPANT SHALL MAKE AN ELECTION PURSUANT TO SECTION 83(B) OF THE CODE,
WITH RESPECT TO THE SERIES F SHARES ISSUED UNDER THIS AGREEMENT, AND
ACKNOWLEDGES THAT THE PARTICIPANT WILL BE SOLELY RESPONSIBLE FOR ANY AND ALL TAX
LIABILITIES PAYABLE BY THE PARTICIPANT IN CONNECTION WITH THE PARTICIPANT'S
PURCHASE AND RECEIPT OF THE SERIES F SHARES OR ATTRIBUTABLE TO THE PARTICIPANT'S
FAILING TO MAKE SUCH AN ELECTION.
6
8.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
THE COMPANY REPRESENTS AND WARRANTS TO THE PARTICIPANT THAT (A) THE
COMPANY HAS BEEN DULY ORGANIZED AND IS AN EXISTING LIMITED LIABILITY COMPANY IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, (B) THIS AGREEMENT HAS
BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY AND CONSTITUTES A
VALID AND LEGALLY BINDING OBLIGATION OF THE COMPANY ENFORCEABLE AGAINST THE
COMPANY IN ACCORDANCE WITH ITS TERMS, AND (C) THE SERIES F SHARES, WHEN ISSUED,
DELIVERED AND PAID FOR IN ACCORDANCE WITH THE TERMS HEREOF, WILL BE DULY AND
VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE.
9.
MISCELLANEOUS.
(A)
BINDING EFFECT; BENEFITS; ASSIGNABILITY.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES TO
THIS AGREEMENT AND THEIR RESPECTIVE SUCCESSORS, HEIRS, EXECUTORS AND ASSIGNS.
NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED OR SHALL BE CONSTRUED
TO GIVE ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT OR THEIR RESPECTIVE
SUCCESSORS, HEIRS, EXECUTORS OR ASSIGNS ANY LEGAL OR EQUITABLE RIGHT, REMEDY OR
CLAIM UNDER OR IN RESPECT OF ANY AGREEMENT OR ANY PROVISION CONTAINED HEREIN.
NEITHER THIS AGREEMENT NOR ANY RIGHT, REMEDY, OBLIGATION OR LIABILITY ARISING
HEREUNDER OR BY REASON HEREOF SHALL BE ASSIGNABLE BY THE COMPANY OR THE
PARTICIPANT WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED THAT
THE COMPANY SHALL HAVE THE RIGHT TO ASSIGN ANY AND ALL RIGHTS UNDER
SECTION 5(C).
(B)
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED,
MODIFIED OR SUPPLEMENTED ONLY BY A WRITTEN INSTRUMENT EXECUTED BY THE
PARTICIPANT AND THE COMPANY.
(C)
ENTIRE AGREEMENT.
THIS AGREEMENT, THE
SECURITYHOLDERS AGREEMENT , THE CHARTER AND ANY EMPLOYMENT AGREEMENT WHICH THE
PARTICIPANT HAS ENTERED INTO WITH THE COMPANY CONSTITUTE THE ENTIRE AGREEMENT
BETWEEN THE PARTICIPANT AND THE COMPANY WITH RESPECT TO THE SUBJECT MATTER
HEREOF,