BE IN WRITING AND
SIGNED BY THE COMPANY AND HOLDERS HOLDING A MAJORITY OF THE THEN OUTSTANDING
REGISTRABLE SECURITIES, INCLUDING HOLDERS OF AT LEAST TWO-THIRDS OF THE THEN
OUTSTANDING REGISTRABLE SECURITIES HELD BY HOLDERS WHO ARE NOT INSIDE INVESTORS
(AS SUCH TERM IS DEFINED IN THE PURCHASE AGREEMENT), PROVIDED THAT ANY PARTY MAY
GIVE A WAIVER AS TO ITSELF.
NOTWITHSTANDING THE FOREGOING,
A WAIVER OR CONSENT
TO DEPART FROM THE PROVISIONS HEREOF WITH RESPECT TO A MATTER THAT RELATES
EXCLUSIVELY TO THE RIGHTS OF HOLDERS AND THAT DOES NOT DIRECTLY OR INDIRECTLY
AFFECT THE RIGHTS OF OTHER HOLDERS MAY BE GIVEN BY HOLDERS OF ALL OF THE
REGISTRABLE SECURITIES TO WHICH SUCH WAIVER OR CONSENT RELATES; PROVIDED,
HOWEVER, THAT THE PROVISIONS OF THIS SENTENCE MAY NOT BE AMENDED, MODIFIED, OR
SUPPLEMENTED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE IMMEDIATELY
PRECEDING SENTENCE.
(E)
NOTICES.
ANY AND ALL NOTICES OR OTHER
COMMUNICATIONS OR DELIVERIES REQUIRED OR PERMITTED TO BE PROVIDED HEREUNDER
SHALL BE DELIVERED AS SET FORTH IN THE PURCHASE AGREEMENT.
(F)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE SUCCESSORS AND PERMITTED
ASSIGNS OF EACH OF THE PARTIES AND SHALL INURE TO THE BENEFIT OF EACH HOLDER.
NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY
PARTY OTHER THAN THE PARTIES HERETO OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS
ANY RIGHTS, REMEDIES, OBLIGATIONS, OR LIABILITIES UNDER OR BY REASON OF THIS
AGREEMENT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
THE COMPANY MAY NOT
ASSIGN ITS RIGHTS (EXCEPT BY MERGER OR IN CONNECTION WITH ANOTHER ENTITY
ACQUIRING ALL OR SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS) OR OBLIGATIONS
HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL
14
THE HOLDERS OF THE THEN OUTSTANDING REGISTRABLE SECURITIES.
EACH HOLDER MAY
ASSIGN ITS RESPECTIVE RIGHTS HEREUNDER IN THE MANNER AND TO THE PERSONS AS
PERMITTED UNDER THE PURCHASE AGREEMENT.
(G)
EXECUTION AND COUNTERPARTS.
THIS AGREEMENT
MAY BE EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED
SHALL BE DEEMED TO BE AN ORIGINAL AND, ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE ONE AND THE SAME AGREEMENT AND SHALL BECOME EFFECTIVE WHEN
COUNTERPARTS HAVE BEEN SIGNED BY EACH PARTY AND DELIVERED TO THE OTHER PARTY, IT
BEING UNDERSTOOD THAT BOTH PARTIES NEED NOT SIGN THE SAME COUNTERPART.
IN THE
EVENT THAT ANY SIGNATURE IS DELIVERED BY FACSIMILE TRANSMISSION OR BY E-MAIL
DELIVERY OF A ".PDF" FORMAT DATA FILE, SUCH SIGNATURE SHALL CREATE A VALID AND
BINDING OBLIGATION OF THE PARTY EXECUTING (OR ON WHOSE BEHALF SUCH SIGNATURE IS
EXECUTED) WITH THE SAME FORCE AND EFFECT AS IF SUCH FACSIMILE OR ".PDF"
SIGNATURE WERE THE ORIGINAL THEREOF.
(H)
GOVERNING LAW.
ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE PURCHASE AGREEMENT.
(I)
CUMULATIVE REMEDIES.
THE REMEDIES
PROVIDED HEREIN ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY OTHER REMEDIES PROVIDED
BY LAW.
(J)
SEVERABILITY. IF ANY TERM, PROVISION,
COVENANT OR RESTRICTION