WITH THE PROVISIONS OF THE BYLAWS.
EACH OF THE PARTIES COVENANTS AND AGREES TO VOTE OR CAUSE TO BE VOTED THEIR
VOTING SECURITIES, AND TO TAKE ANY OTHER ACTION REASONABLY REQUESTED BY THE
COMPANY OR ANY STOCKHOLDER, TO AMEND THE BYLAWS SO AS TO AVOID ANY CONFLICT WITH
THE PROVISIONS HEREOF.
4.4
FURTHER ASSURANCES.
EACH PARTY HERETO SHALL DO AND PERFORM OR
CAUSE TO BE DONE AND PERFORMED ALL SUCH FURTHER ACTS AND THINGS, AND SHALL
EXECUTE AND DELIVER ALL SUCH FURTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND
DOCUMENTS, AS ANY OTHER PARTY HERETO REASONABLY MAY REQUEST IN ORDER TO CARRY
OUT THE PROVISIONS OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
4.5
NO RECOURSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, THE COMPANY AND EACH STOCKHOLDER AGREES AND ACKNOWLEDGES THAT NO
RECOURSE UNDER THIS AGREEMENT OR ANY DOCUMENTS OR INSTRUMENTS DELIVERED IN
CONNECTION WITH THIS AGREEMENT, SHALL BE HAD AGAINST ANY CURRENT OR FUTURE
DIRECTOR, OFFICER, EMPLOYEE, GENERAL OR LIMITED PARTNER OR MEMBER OF ANY
STOCKHOLDER OR OF ANY AFFILIATE OR ASSIGNEE THEREOF, WHETHER BY THE ENFORCEMENT
OF ANY ASSESSMENT OR BY ANY LEGAL OR EQUITABLE PROCEEDING, OR BY VIRTUE OF ANY
STATUTE, REGULATION OR OTHER APPLICABLE LAW, IT BEING EXPRESSLY AGREED AND
ACKNOWLEDGED THAT NO PERSONAL LIABILITY WHATSOEVER SHALL ATTACH TO, BE IMPOSED
ON OR OTHERWISE BE INCURRED BY ANY CURRENT OR FUTURE OFFICER, AGENT OR EMPLOYEE
OF ANY STOCKHOLDER OR ANY CURRENT OR FUTURE MEMBER OF ANY STOCKHOLDER OR ANY
CURRENT OR FUTURE DIRECTOR, OFFICER, EMPLOYEE, PARTNER OR MEMBER OF ANY
STOCKHOLDER OR OF ANY AFFILIATE OR ASSIGNEE THEREOF, AS SUCH FOR ANY OBLIGATION
OF ANY STOCKHOLDER UNDER THIS AGREEMENT OR ANY DOCUMENTS OR INSTRUMENTS
DELIVERED IN CONNECTION WITH THIS AGREEMENT FOR ANY CLAIM BASED ON, IN RESPECT
OF OR BY REASON OF SUCH OBLIGATIONS OR THEIR CREATION.
25
4.6
AMENDMENT; WAIVERS, ETC.
(A)
THIS AGREEMENT MAY BE AMENDED, AND THE COMPANY MAY TAKE ANY ACTION
HEREIN PROHIBITED, OR OMIT TO PERFORM ANY ACT HEREIN REQUIRED TO BE PERFORMED BY
IT, ONLY IF ANY SUCH AMENDMENT, ACTION OR OMISSION TO ACT HAS BEEN APPROVED BY
(I) BOARD SPECIAL APPROVAL AND (II) STOCKHOLDER SPECIAL APPROVAL; PROVIDED,
HOWEVER, THAT THIS AGREEMENT MAY NOT BE AMENDED IN A MANNER ADVERSELY AFFECTING
THE RIGHTS OR OBLIGATIONS OF ANY STOCKHOLDER THAT DOES NOT ADVERSELY AFFECT THE
RIGHTS OR OBLIGATIONS OF ALL SIMILARLY SITUATED STOCKHOLDERS IN THE SAME MANNER
WITHOUT THE CONSENT OF SUCH STOCKHOLDER.
(B)
THE FAILURE OF ANY PARTY TO ENFORCE ANY OF THE PROVISIONS OF THIS
AGREEMENT SHALL IN NO WAY BE CONSTRUED AS A WAIVER OF SUCH PROVISIONS AND SHALL
NOT AFFECT THE RIGHT OF SUCH PARTY THEREAFTER TO ENFORCE EACH AND EVERY
PROVISION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
ANY STOCKHOLDER MAY
WAIVE (IN WRITING) THE BENEFIT OF ANY PROVISION OF THIS AGREEMENT WITH RESPECT
TO ITSELF FOR ANY PURPOSE.
ANY SUCH WAIVER SHALL CONSTITUTE A WAIVER ONLY WITH
RESPECT TO THE SPECIFIC MATTER DESCRIBED IN SUCH WRITING AND SHALL IN NO WAY