93404
Telephone:
(650) 493-9300
Facsimile:
(650) 493-6811
Attention:
John V. Roos, Esq.
If to the Transfer Agent:
Mellon Investor Services LLC
235 Montgomery Street
23rd Floor
San Francisco, California
94104
Telephone:
(415) 743-1426
Facsimile:
(415) 989-5241
Attention:
David Altschul
If to a Buyer, to its address and facsimile number set forth on the Schedule of
Buyers, with copies to such Buyer's representatives as set forth on the Schedule
of Buyers, or to such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change.
Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by an overnight courier service shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(G)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, INCLUDING ANY PURCHASERS OF THE NOTES OR THE
WARRANTS.
THE COMPANY SHALL NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE HOLDERS OF NOTES
REPRESENTING AT LEAST A MAJORITY OF THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES
THEN OUTSTANDING, INCLUDING BY MERGER OR CONSOLIDATION, EXCEPT PURSUANT TO A
CHANGE OF CONTROL (AS DEFINED IN SECTION 5(A) OF THE NOTES) WITH RESPECT TO
WHICH THE COMPANY IS IN COMPLIANCE WITH SECTION 5 OF THE NOTES AND SECTION 4(B)
OF THE WARRANTS.
A BUYER MAY ASSIGN SOME OR ALL OF ITS RIGHTS HEREUNDER WITHOUT
THE CONSENT OF THE COMPANY, IN WHICH EVENT SUCH ASSIGNEE SHALL BE DEEMED TO BE A
BUYER HEREUNDER WITH RESPECT TO SUCH ASSIGNED RIGHTS.
29
(H)
NO THIRD PARTY BENEFICIARIES.
THIS
AGREEMENT IS INTENDED FOR THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
PERMITTED SUCCESSORS AND ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY
PROVISION HEREOF BE ENFORCED BY, ANY OTHER PERSON.
(I)
SURVIVAL.
UNLESS THIS AGREEMENT IS
TERMINATED UNDER SECTION 8, THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE BUYERS CONTAINED IN SECTIONS 2 AND 3 AND THE AGREEMENTS AND COVENANTS
SET FORTH IN SECTIONS 4, 5 AND 9 SHALL SURVIVE THE CLOSING.
EACH BUYER SHALL BE
RESPONSIBLE ONLY FOR ITS OWN REPRESENTATIONS, WARRANTIES, AGREEMENTS AND
COVENANTS HEREUNDER.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO
AND PERFORM, OR CAUSE TO BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND
THINGS, AND SHALL EXECUTE AND DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES,
INSTRUMENTS AND DOCUMENTS, AS ANY OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO
CARRY OUT THE INTENT AND ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS