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.
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5.13
NO THIRD PARTY BENEFICIARIES. NOTHING CONTAINED IN THIS AGREEMENT,
EXPRESSED OR IMPLIED, IS INTENDED TO CONFER UPON ANY PERSON OR ENTITY OTHER THAN
THE PARTIES HERETO, ANY BENEFIT RIGHT OR REMEDIES, EXCEPT THAT THE PROVISIONS OF
SECTION 3.4 SHALL INURE TO THE BENEFIT OF THE PERSONS REFERRED TO IN THAT
SECTION.
5.14
TIME OF ESSENCE. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF EACH AND
EVERY TERM OF THIS AGREEMENT.
5.15
SPECIFIC PERFORMANCE.
THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD
OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS.
IT IS ACCORDINGLY AGREED
THAT THE PARTIES SHALL BE ENTITLED TO SEEK SPECIFIC PERFORMANCE OF THE TERMS
HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDIES TO WHICH THEY ARE ENTITLED
AT LAW OR EQUITY.
* * *
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[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly authorized officers of the parties hereto as of the date first herein above
written.
WASHINGTON MUTUAL, INC.
By:
Name:
Title:
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[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
Accepted and Agreed as of the date first above written:
Name of Purchaser
By:
[PLEASE SIGN ABOVE THIS LINE]
Name:
Title:
Address:
Aggregate number of shares of Common Stock to be purchased by you:
shares
Price per share applicable to the purchase by you of the Common Stock:
$8.75
Aggregate number of shares of Convertible Preferred Stock to be purchased by
you:
shares
Price per share applicable to the purchase by you of the Convertible Preferred
Stock:
$100,000
Aggregate number of Warrants to be issued to you:
warrants
Nominee (name in which the shares of Common Stock are to be registered, if
different than name of Purchaser):
Taxpayer Identification Number (if acquired in the name of a Nominee, the
taxpayer I.D. No. of such Nominee):
Nominee (name in which the shares of Convertible Preferred Stock are to be
registered, if different than name of Purchaser):
Taxpayer Identification Number for Convertible Preferred Stock Nominee (if
acquired in the name of a Nominee, the taxpayer I.D. No. of such Nominee):
Number of Shares owned of Record or Beneficially Owned by Purchaser and its
Affiliates:
shares
30