THAT THE EQUITY SECURITIES
OF SUCH ENTITY WERE ACQUIRED IN SATISFACTION OF A DEBT PREVIOUSLY CONTRACTED IN
GOOD FAITH OR ARE OWNED OR CONTROLLED IN A BONA FIDE FIDUCIARY CAPACITY;
(B)
THE TERM "AFFILIATE" MEANS, WITH RESPECT TO ANY PERSON, ANY
PERSON DIRECTLY OR INDIRECTLY CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL
WITH, SUCH OTHER PERSON.
FOR PURPOSES OF THIS DEFINITION, "CONTROL" (INCLUDING,
WITH CORRELATIVE MEANINGS, THE TERMS "CONTROLLED BY" AND "UNDER COMMON CONTROL
WITH") WHEN USED WITH RESPECT TO ANY PERSON, MEANS THE POSSESSION, DIRECTLY OR
INDIRECTLY, OF THE POWER TO CAUSE THE DIRECTION OF MANAGEMENT AND/OR POLICIES OF
SUCH PERSON, WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES BY CONTRACT OR
OTHERWISE;
(C)
THE WORD "OR" IS NOT EXCLUSIVE;
(D)
THE WORDS "INCLUDING," "INCLUDES," "INCLUDED" AND "INCLUDE"
ARE DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT LIMITATION";
(E)
THE TERMS "HEREIN," "HEREOF" AND "HEREUNDER" AND OTHER WORDS
OF SIMILAR IMPORT REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR
SECTION, PARAGRAPH OR SUBDIVISION;
(F)
"BUSINESS DAY" MEANS ANY DAY EXCEPT SATURDAY, SUNDAY AND ANY
DAY WHICH SHALL BE A LEGAL HOLIDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN THE
STATE OF NEW YORK GENERALLY ARE AUTHORIZED OR REQUIRED BY LAW OR OTHER
GOVERNMENTAL ACTIONS TO CLOSE;
(G)
"PERSON" HAS THE MEANING GIVEN TO IT IN SECTION 3(A)(9) OF THE
EXCHANGE ACT AND AS USED IN SECTIONS 13(D)(3) AND 14(D)(2) OF THE EXCHANGE ACT;
(H)
"BENEFICIAL OWNER" (AND THE CORRELATIVE TERM "BENEFICIALLY
OWNED") HAS THE MEANING GIVEN TO IT IN RULES 13D-3 AND 13D-5 OF THE EXCHANGE
ACT; AND
(I)
THE TERM "KNOWLEDGE OF THE COMPANY" OR ANY SIMILAR
FORMULATION OF KNOWLEDGE SHALL MEAN THE ACTUAL KNOWLEDGE OF THE OFFICERS OF THE
COMPANY LISTED ON SECTION 6.9(I) OF THE DISCLOSURE SCHEDULE OF THE COMPANY.
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6.10
Captions.
The article, section, paragraph and clause captions
herein are for convenience of reference only, do not constitute part of this
Agreement and will not be deemed to limit or otherwise affect any of the
provisions hereof.
6.11
Severability.
If any provision of this Agreement or the
application thereof to any person (including the officers and directors of the
Investor and the Company) or circumstance 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, will 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 materially adverse to any
party.
Upon such determination, the parties shall negotiate in good faith in an
effort to agree upon a suitable and equitable substitute provision to effect the
original intent of the parties.
6.12
No Third-Party Beneficiaries.
Nothing contained in this Agreement,
expressed or implied, is intended to confer upon any person other than