SECTION 3.2
AND 3.3 SHALL TERMINATE (X) FOR ALL HOLDERS UPON THE REDEMPTION OF ALL SERIES
B-1 STOCK PURSUANT TO SECTION 5(A) OF THE CERTIFICATE OF DESIGNATIONS, (Y) IN
THE CASE OF ANY SPECIFIC INVESTOR SHALL TERMINATE WITH RESPECT TO SUCH INVESTOR
(BUT NOT REMAINING INVESTORS) UPON THE DISPOSITION BY SUCH INVESTOR OF 50% OR
MORE OF THE COMMON STOCK ISSUABLE UPON CONVERSION OF THE SERIES B-1 STOCK
PURCHASED BY SUCH INVESTOR, (II) THE PROVISIONS OF SECTION 3.4 AND 3.5 SHALL
TERMINATE UPON THE COMMENCEMENT OF THE SHELF EFFECTIVE PERIOD PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT, AND (III) NO PERSON WHO ACQUIRES SERIES B-1 STOCK
IN CONNECTION WITH A PERMITTED DISPOSITION UNDER SECTION 2.3(B)(I) OR (III) OR
COMMON STOCK ISSUED UPON CONVERSION THEREOF SHALL SUCCEED TO ANY RIGHTS OR
OBLIGATIONS UNDER ARTICLE III.
ARTICLE V
MISCELLANEOUS
SECTION 5.1
AMENDMENT AND MODIFICATION.
THIS AGREEMENT MAY BE AMENDED,
MODIFIED AND SUPPLEMENTED, AND ANY OF THE PROVISIONS CONTAINED HEREIN MAY BE
WAIVED, ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE COMPANY AND BY THE INVESTORS
AND THE HOLDERS OWNING AT LEAST A MAJORITY OF THE OUTSTANDING SERIES B-1 STOCK
AND COMMON STOCK ISSUED UPON CONVERSION THEREOF OWNED BY ALL HOLDERS OR
INVESTORS AS THE CASE MAY BE.
NO COURSE OF DEALING BETWEEN OR AMONG ANY PERSONS
HAVING ANY INTEREST IN THIS AGREEMENT WILL BE DEEMED EFFECTIVE TO MODIFY, AMEND
OR DISCHARGE ANY PART OF THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS OF ANY
PERSON UNDER OR BY REASON OF THIS AGREEMENT.
SECTION 5.2
ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. NEITHER THIS
AGREEMENT, NOR ANY OF THE RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER SHALL BE
ASSIGNED BY ANY OF THE PARTIES HERETO (WHETHER BY OPERATION OF LAW OR OTHERWISE)
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES, PROVIDED, HOWEVER, THAT
(I) THE OBLIGATIONS CONTAINED IN SECTIONS 2.2 AND 2.3 SHALL BE BINDING UPON
BENEFICIAL HOLDERS, INSTITUTIONAL INVESTORS, OTHER TRANSFEREES AND AFFILIATES OF
INVESTORS TO WHOM A PERMITTED DISPOSITION IS MADE AND THE RIGHTS PROVIDED IN
SECTION 3.5 SHALL BE ASSIGNABLE IN THE EVENT OF SUCH A PERMITTED DISPOSITION,
AND (II) ANY AFFILIATE OF AN INVESTOR MAY SHARE IN THE CO-INVESTMENT RIGHTS HELD
BY SUCH INVESTOR UNDER SECTION 3.3.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT AND EXCEPT AS PROVIDED IN CLAUSE (II) OF THE PRECEDING SENTENCE,
THE RIGHTS AND OBLIGATIONS PROVIDED IN SECTIONS 3.2 AND 3.3 ARE PERSONAL TO EACH
INVESTOR AND SHALL INURE SOLELY TO THE BENEFIT OF,
10
AND BE BINDING UPON, THE INVESTORS AND MAY NOT BE ASSIGNED EXCEPT TO ANOTHER
INVESTOR AND EXCEPT THAT THE RIGHTS PROVIDED IN SECTION 3.2 WITH RESPECT TO
OFFERINGS OF PREFERRED SHARES SHALL INURE TO THE BENEFIT OF ANY BENEFICIAL
HOLDER, INSTITUTIONAL INVESTOR, OTHER TRANSFEREE OR AFFILIATE OF AN INVESTOR, IN
ANY PERMITTED DISPOSITION TO SUCH PARTY.
SECTION 5.3
BINDING EFFECT; ENTIRE AGREEMENT.
EXCEPT AS OTHERWISE PROVIDED
HEREIN, THIS AGREEMENT AND ALL OF THE PROVISIONS HEREOF SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS
AND